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[Cite as State v. Carter, 259 Mo. 349, 168 S.W. 679 (1914).]

STATE v. CARTER (No. 18108.)

(Supreme Court of Missouri, Division No. 2. June 23, 1914.)

1. Witnesses--Impeachment--Rebutting Evidence.
A witness cannot avoid impeachment by proof that he made statements at accused's preliminary hearing inconsistent with his testimony on trial by testifying in response to questions as to such statements that he did not remember whether he made them.

2. Weapons--Offenses--Intent to Conceal.
Under Rev. St. 1909 4496, making it a felony to carry concealed about the person a dangerous or deadly weapon, an intent to carry a concealed weapon is an essential; and hence accused is not guilty if he did not intend to conceal the weapon he was carrying.

3. Criminal Law--Instructions--Application to Case.
In a prosecution for carrying deadly weapons concealed about the person, where there was evidence tending to show that accused was not concealing the revolver which he was carrying, the denial of an instruction that intent to conceal the weapon is an essential to the offense was error.

4. Weapons--Offenses--Defenses.
Under Rev. St. 1909, 4496, denouncing the offense of carrying concealed weapons, it is no defense that accused, who was not among those excepted from the statute, was carrying the revolver to protect himself from threatened assault.

Appeal from Circuit Court, Moniteau County; J. G. Slate, Judge.

O.W. Carter was convicted of the crime of carrying concealed weapons, and he appeals. Reversed and remanded.

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 $100. 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, Mo., 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 him back to his store, he saw the handle and part of the cylinder of the revolver sticking out of defendant's right hand pocket. On the cross-examination of this witness, and for the purpose of laying a foundation for his impeachment, he was asked if he did not testify at the preliminary hearing that when he was on the right side (p.680)of defendant, as they were going down the street, he could see the pistol in defendant's pocket. In answer to this question he said that if he did so testify he didn't remember it. Later defendant offered to prove by witnesses R. L. Hagen, Fred Krone, a lawyer, and A. M. Park, deputy sheriff, that they were present at the preliminary hearing and heard witness Rymel there testify that when he was on the right side of the defendant he saw the pistol in defendant's right hand pocket. The court refused to admit this evidence, and defendant excepted. The evidence on the part of defendant was substantially as follows: Lee Huff and his son Floyd testified that all the time defendant was coming down the street he was using both hands trying to push the boys away from him, and as he passed the place where they were standing they could see the pistol handle sticking out of defendant's right hand pocket. Virgil Carter, son of defendant, testified that he was on the right side of his father as they went down the street, and as they started down the street he saw a portion of the pistol sticking out of his father's right hand pocket; that after they started down the street he did not look at his father's pocket any more until they reached the place where defendant was finally stopped; that he was somewhat excited during this time, and his attention was occupied trying to get his father back to the store; that when he did again look at the pocket in which the pistol was contained, after defendant was finally stopped, the pistol was in the same position that it was in when defendant started down the street; and that a portion of the pistol stuck out of the pocket and was visible. Two or three other witnesses for the defendant testified that defendant did not have his right hand in his pocket, but was using his right hand pushing the boys away from him. Two of these witnesses were standing on the right hand edge of the street, but did not notice the revolver in defendant's pocket. Defendant testified in his own behalf that he had the pistol in his right hand overalls pocket as he went down the street, but that the pistol was not concealed at any time, and that a portion of the pistol stuck out of his overalls pocket about 3 or 3 1/2 inches, and that the pocket was not sufficiently large to conceal the pistol; that he did not conceal the upper part of the pistol by putting his hand in his pocket or over the pistol, but that both of the boys were clinging to him as they were going down the street, and that he was using both hands pushing the boys in front of him. He further testified that he did not intend to carry the pistol concealed at any time. Defendant further offered to prove that on the same day, and a short time prior to placing the pistol in his pocket, he had been assaulted, and his life had been threatened, and he thought he was in great personal danger, and he was carrying the weapon in defense of his life. This testimony was excluded by the court and defendant saved an exception. The defendant offered in evidence the overalls which he wore on the day in question, and also the pistol which he had in his pocket, and upon his request he was permitted to put on the overalls and to put the pistol in the right hand pocket thereof, and to walk before the jury so that the jury could see the way and manner in which the defendant claimed he carried the gun on the day in question. He testified that the overalls had not been changed in any manner, and that the pockets were the same as upon the day in question.

S. C. Gill, of California, Mo., and A. T. Dumm, of Jefferson City, for appellant. John T. Barker, Atty. Gen., and Thomas J. Higgs, Asst. Atty. Gen., for the State.

WILLIAMS, C. (after stating the facts as above). I. It is urged that the court erred in excluding the testimony offered by defendant to impeach the witness Rymel. This witness, by reason of being in close proximity to defendant during the time the weapon is claimed to have been concealed, was an important witness for the state. As defendant went down the street, this witness and defendant's son attempted to stop him, and cause him to return to the store. Rymel testified that he did not see the revolver from the time defendant started down the street until he was finally stopped. From his testimony it clearly appears that a portion of that time, at least, he was in a position to have seen the revolver if it was not concealed, thereby clearly leaving the inference that the revolver was concealed at that time. For the purpose of laying a foundation for the impeachment of the witness, he was asked whether or not, at the preliminary hearing in the case, he testified that he saw the pistol in defendant's pocket after defendant left the store and before he was stopped. He answered that he did not think he did so testify. Upon being further asked if he did not testify, at the preliminary hearing, that when he was on the right side of defendant he could see the pistol, he replied that, if he did, he didn't remember it. Later the defendant offered to prove by three witnesses, who were present and heard the witness testify at the preliminary hearing, that he did so testify. The state objected to the introduction of this testimony, on the ground that since the witness had not denied that he had so testified, but merely said he did not remember, no proper foundation had been laid for the impeachment of the witness. The court sustained the objection, and refused defendant's offer of proof, and defendant saved an exception. The court erred in excluding this evidence. In the case of Peck v. Ritchey, 66 Mo. 114, loc. cit. 119, 120, this court, speaking through Henry, J., correctly announced the rule here applicable, as follows:(p.681)

"A witness cannot avoid contradicting by equivocating, nor is the opposite party to be deprived of the right to show that the witness has made contradictory statements, either by his feigned or real forgetfulness. Nothing but an admission that he made the very statement alleged will deprive the opposite party of the right to prove it."

To the same effect are Sullivan v. Jefferson Avenue Ry. Co., 133 Mo. 1, 34 S.W. 566, 32 L.R.A. 167; 40 Cyc. 2737, 2738.

II. It is further contended that the court erred in refusing defendant's instruction D. Said instruction was as follows:

"To conceal a weapon means something more than carrying it or the mere fact of having it where it may not be seen; it implies an assent of the mind and a purpose to carry it so that it may not be seen."

This was a prosecution under section 4496, R.S. 1909, which constitutes it a felony for any person (other than persons therein excepted) to "carry concealed upon or about his person a dangerous or deadly weapon," etc. Defendant does not come within any of the exceptions enumerated in the statute. Such being true, the motive or purpose with which defendant carried the revolver concealed would be no defense, and should not be considered in arriving at the guilt or innocence of the defendant. But, while that is true, yet defendant, even though he carried the revolver concealed, would not be guilty of an offense under the statute, unless he intended to do the act which the statute prohibits, to wit, carry the weapon concealed. Bishop on Statutory Crimes, 789; State v. Hovis, 135 Mo. App. 544, 116 S.W. 6; 5 Am. & Eng. Encyc. of Law (2d Ed.) p. 734.

The sole issue of fact in this case was with reference to the concealment of the instrument. The state's evidence tended to show that as defendant walked down the street the revolver was concealed partly in the pocket and partly by his right hand. Defendant's evidence tended to show that it was not concealed, but that a portion of it protruded above the pocket, and that defendant did not intend to conceal the same, and that he was using his right hand to free himself from the two boys as the three were progressing down the street. The circumstances detailed in evidence gave some corroboration to defendant's claim.

Where the state's evidence shows that the weapon is concealed, it would, no doubt, be a sufficient prima facie showing that he intended to conceal the same because from such proof it might well be inferred or presumed that the person intended to do that which, in fact, he did do, and when this is true and this issue is not controverted, it becomes of little importance in the case. But where, as here, a contested issue of fact is involved, both as to the concealment and, if concealed, as to whether or not the defendant intended it to be concealed, the question of defendant's intent in that regard becomes an important issue of fact in the case, to be determined by the jury. The instruction requested by defendant contains a correct declaration of law, but we think this issue could be more clearly put to the jury if they were, in effect, instructed that, if they find and believe from the evidence that defendant did not intend to carry the weapon concealed, then they should acquit the defendant; or the point might be properly presented to the jury by inserting the word "intentionally," or other words of like import, at the proper place in the main instruction given on behalf of the state. The court in the present case should have instructed the jury on the above point.

III. The court did not err in refusing to allow the defendant to prove that he had been threatened with great bodily harm or had good reason to carry the weapon in the necessary defense of his person. The above were proper defenses under section 1863, R.S. 1899. But that section was repealed in 1909, and a new section (section 4496, R.S. 1909) was enacted in lieu thereof. Session Act 1909, p. 452.

Those defenses are not available to the defendant charged with carrying concealed weapons under the new act.

The judgment is reversed, and the cause is remanded.

ROY, C., concurs.

PER CURIAM. The foregoing opinion of WILLIAMS, C., is adopted as the opinion of the court.

WALKER, P.J., and BROWN, J., concur. FARIS, J., concurs in paragraph I and in the result.