The State v. Carter
| Decision Date | 23 June 1914 |
| Citation | 168 S.W. 679,259 Mo. 349 |
| Parties | THE STATE v. O. W. CARTER, Appellant |
| Court | Missouri Supreme Court |
Appeal from Moniteau Circuit Court. -- Hon. J. G. Slate, Judge.
Reversed and remanded.
S. C Gill and A. T. Dumm for appellant.
(1) The court erred in refusing to permit appellant to impeach the witness, Rymel, by proof of contradictory statements made by the witness on the vital question in the case. Peck v Ritchey, 66 Mo. 119; Sullivan v. Railroad, 133 Mo. 5; Mahaney v. Railroad, 108 Mo. 200; Spohn v. Railroad, 122 Mo. 17; State v. Baker, 136 Mo. 83; Garrett v. Transit Co., 219 Mo. 93; 30 Am. & Eng. Ency. Law (2 Ed.), 1111, 1112, and cases cited; 40 Cyc 2737. The proper foundation was laid for the impeachment, and the equivocal answer of the witness sought to be impeached did not deprive appellant of the right to prove contradictory statements made by the witness. (2) The court erred in refusing instruction D, requested by appellant, which covered the question of appellant's intent to carry the weapon concealed. State v. Murray, 39 Mo.App. 129; State v. Roberts, 39 Mo.App. 48; State v. Larkin, 24 Mo.App. 410; State v. Partlow, 90 Mo. 626; State v. Banks, 73 Mo. 592; State v. Palmer, 88 Mo. 573; Nichols v. Winfrey, 79 Mo. 546; State v. Tate, 12 Mo.App. 327; State v. Murphy, 14 Mo.App. 73. (3) Instruction 4, given for the State, does not properly declare the law, and is unfair and prejudicial to the appellant. The giving of this instruction and the refusal of instruction D, requested by appellant, was, in substance and practical effect, a direction to the jury to find appellant guilty, though the weapon might have been concealed for an infinitesimal period of time, and without regard to the intent of appellant in having the weapon upon his person, and regardless of his intention not to carry it concealed. 5 Am. & Eng. Ency. Law (2 Ed.), p. 734; Page v. State, 3 Heisk. (Tenn.) 198; Owen v. State, 31 Ala. 387; Lann v. State, 25 Tex.App. 495; Waddell v. State, 37 Tex. 354; State v. Larkin, 24 Mo.App. 410. (4) The court erred in refusing to permit appellant to prove that immediately before he procured the pistol his life had been threatened and he had been assaulted, and that he believed and had good reason to believe that he was in great personal danger, and that he was carrying the weapon in his own defense; and the court further erred in refusing instruction F, requested by appellant, which told the jury that if they found that appellant had been threatened with great bodily harm, or had good reason to believe that it was necessary for him to carry the weapon in defense of his person, they would find him not guilty.
John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
(1) Under point 1 of the appellant's brief a number of cases are cited to the effect that the party proposing to impeach a witness cannot be deprived of this right by an equivocal answer of the witness or his failure to remember whet he testified to before. We are not disposed to contend that this is not the law of this State. The particular questions and answers sought to be impeached by the appellant are as follows: The court will notice that this question does not call for any particular time or place when the defendant was on the right side of Mr. Carter. It is not laid at any time from the moment defendant left his store until he was stopped by Rymel and Bardwell. While it is true that the above question and answer, in connection with the questions and answers immediately preceding, would tend to fix the time and place rather indefinitely before the appellant was stopped by Rymel and Bardwell, yet the crime of carrying concealed weapons can be committed by carrying a concealed weapon for a small space of time. Therefore, whether Rymel had seen the revolver in the appellant's pocket or not would be immaterial. Kelley's Crim. Law & Procedure (3 Ed.), sec. 385; State v. Parker, 96 Mo. 993; State v. Grant, 79 Mo. 132. Again, the offer of proof by the appellant is indefinite as to time, and is in words and figures as follows: "Mr. Dumm: We offer to show by this witness that he was present at the preliminary hearing of the defendant, O. W. Carter, at Tipton, Mo., on the 23rd day of July, 1912; that at the preliminary hearing Willie Rymel was sworn as a witness, and he testified that he was on the right side of the defendant, and he saw the pistol in his pocket." The same offer of proof is (again) renewed on pages 88 and 89 of the transcript and both of these instances are indefinite as to time and place. We believe that, while there must be an unequivocal admission in order to refuse an impeachment of a witness, in the case at bar the offer of proof, being indefinite as to time and place, did not in any way tend to impeach the testimony of the witness, Rymel. If the court should be of the opinion that the offer as made would impeach the witness, Rymel, it must be remembered that the extent of impeaching testimony rests largely within the discretion of the court. 40 Cyc. 2741; Car Works Co. v. Copper, 75 Ark. 325. (2) We do not believe that instruction D declares the law under section 4496. The cases cited by the appellant are all cases arising under Secs. 1862 and 1863, R. S. 1899. The exception under Sec. 4496, R. S. 1909, is materially different. In the exceptions under section 4496 the following words are omitted which were included under section 1863, Revised Statutes 1899: "And it shall be a good defense to the charge of carrying such weapon if the court shall show he has been threatened with great bodily harm or had good reason to carry the same in the necessary defense of his person." In the appellant's brief the case of State v. Hovis, 135 Mo.App. 544, is omitted. This case mentions some of the cases cited by the appellant and states that when the intent to carry a deadly weapon concealed about the person exists and the act is not within one of the exceptions of Sec. 1863, R. S. 1899, the defendant is guilty and it is immaterial that his ulterior purpose or motive in carrying the weapon is innocent and harmless. (3) Under Sec. 4496, R. S. 1909, the facts stated in the appellant's instruction F are not a defense, there being no exception, under said section, which includes the same. Appellant's instruction F would have been a good instruction under Sec. 1863, R. S. 1899, but the Legislature evidently had this very matter of defense in mind when it enacted Sec. 4496, R. S. 1909, and omitted to state that it would be a good defense to the charge of carrying such weapon "if the defendant shall show that he has been threatened with great bodily harm or had good reason to carry the same in the necessary defense of his person, home or property." The appellant has failed to distinguish between Sec. 4496, R. S. 1909, and Secs. 1862 and 1863, R. S. 1899.
On January 12, 1914, in the circuit court of Moniteau county, defendant was convicted of the crime of carrying concealed about his person a deadly weapon, to-wit, a revolving pistol. His punishment was assessed at a fine of one hundred dollars. Defendant appealed.
The State's evidence tends to establish the following facts: The crime occurred on one of the principal streets of the town of Fortuna, Moniteau county, Missouri, on July 21, 1913. On that date, defendant, the owner and operator of a store at that place, came out of his store, carrying a revolver in his right hand. He did not have on a coat or vest. On reaching the street, in front of his store, he put the revolver into the right side pocket of his overalls and placed his hand partly into said pocket so that the pocket and hand concealed the revolver. He then started down the middle of the public street (the evidence does not show upon what mission he was bound). Just after he left his place of business, his son Virgil Carter and another boy named Willie Rymel caught up with him and endeavored to force him back to his store, but were unable to do so and the three proceeded westward down the street, the defendant pushing the two boys away with his left hand and keeping his right hand in his right side pocket.
After proceeding down the street a distance of about a block and a half, a Mr. Bardwell came to the assistance of the two boys and he, together with the two boys, forcibly lifted defendant off the ground and started to carry him back to his store. At this juncture, one of the party took the revolver from defendant's pocket and delivered it to Mr. Bardwell.
Five or six witnesses testified, for the State, that at the time of the occurrence, they were standing at different places along the street, in front of different stores, and that they saw defendant and the two boys going down the street but did not see any revolver on the person of the defendant. Some of these witnesses were standing in a position to the left of defendant as he went down the street but others of them were on the right side of the street.
The Rymel boy testified for the State that he had a hold on the defendant the greater portion of the time as they went down the street. This witness further testified that from the time that he caught up with defendant until the time defendant was stopped he could not see the pistol on defendant but that after defendant was stopped and when they started to carry...
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