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[Cite as State v. Reagan, 280 Mo. 57, 217 S.W. 83 (1919).]
(Supreme Court of Missouri, Division No. 2. Dec. 4, 1919.)
1. Criminal law--Instruction
omitting word "Feloniously" not insufficient on prosecution for carrying
Though information used word "feloniously," it was not erroneous to omit the word from instruction that defendant may be convicted if he unlawfully and wrongfully and intentionally carried concealed about his person a certain deadly and dangerous weapon.
2. Criminal law--Instructions
submitting intent to carry concealed weapon sufficient.
Where the question of defendant's intention to carry a revolver was submitted to the jury by an instruction requiring them to find as an element of the offense that he intentionally carried it, failure to include in an instruction merely advising jury how intention could be proved, a direction that defendant should be acquitted if he did not "intend" to carry revolver concealed was not error.
3. Criminal law--Approved verdict
supported by substantial evidence not disturbed.
There being substantial evidence tending to prove state's contention, and verdict of guilty having been approved by trial court, court on appeal is not at liberty to disturb the result.
4. Weapons--Defendant carrying
revolver not on continuous journey.
In prosecution for carrying concealed a loaded revolver, held, under evidence, that jury was warranted in finding that defendant was not within exception of Rev. St. 1909, § 4496, giving one on continuous journey through state right to carry concealed weapon.
Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.
James J., alias Spot, Reagan was convicted of carrying concealed a loaded revolver, and appeals. Affirmed.
The defendant was informed against by the circuit attorney at the February term, 1918, of the circuit court of the city of St. Louis upon a charge of having unlawfully and feloniously carried concealed about his person a dangerous and deadly weapon, to wit, one revolving pistol, loaded with gunpowder and leaden ball, contrary to the statute and against the peace and dignity of the state. On May 27, 1918, the defendant was duly arraigned, in Judge Calhoun's division of said court, and entered his plea to said charge of not guilty. Upon trial of said charge before a jury of 12 men, which occurred on the 10th day of June, 1918, the defendant was convicted, and the jury returned the following verdict:
"We, the jury in the above-entitled cause, find the defendant guilty of carrying concealed weapons, as charged in the information, and assess his punishment at six months in the city jail."
Motion for new trial was overruled, and the case is here on defendant's appeal.
Defendant alleges reversible error as follows, to wit: (a) Instructions 1 and 2 given by the court are erroneous; (b) the verdict of the jury is against the overwhelming weight of the evidence; and (c) the overwhelming weight of the evidence tends to establish the fact that at the time defendant was arrested and was carrying a revolver he was about to start on a trip from the state of Missouri to the state of Kansas, and had a right, under section 4496 of the Revised Statutes, to carry it.
The evidence on the part of the state was (p.84)that Andrew Stevenson and Dick Broeders, police officers doing duty as members of the "gun squad," which duty required them to search those suspected of carrying concealed weapons, on February 26, 1918, between 9:30 and 10 o'clock at night, at a saloon belonging to Yitz Weisman, searched defendant and found concealed in the front pocket of his trousers a six-shot Colt's revolver with all of the chambers loaded, and thereupon arrested and confined him until bond was arranged for his subsequent appearance in the circuit court for trial. In that court it was conceded that defendant had the revolver and had it concealed when arrested, and the same concession is made at our bar.
On the part of defendant the testimony tended to show that he was intending to go that night to Pittsburg, Kan., to buy horses and mules for the United States government, and that he borrowed the gun at Baur's saloon, which is located on Market between Thirteenth and Fourteenth streets, and carried it about a block from there to a saloon run by Yitz Weisman located on the corner of Fourteenth and Chestnut streets and left it there, and shortly thereafter returned and called for the gun, got it and put it in his pocket, and while taking a drink at the bar was searched by the officers, with the result above stated. Defendant further stated that he intended to leave over the Missouri Pacific Railroad at 11:15 for Pittsburg, Kan., but he did not make the trip until one week later.
All of these matters were at his trial in the circuit court submitted to a jury of 12 men, who found him guilty as charged in the information and assessed his punishment at six months in the city jail.
Motion for new trial proved without avail, and defendant is in this court on appeal.
T. J. Rowe and Thos. J. Rowe, Jr., both of St. Louis, for appellant.
Frank W. McAllister, Atty. Gen., and Shrader P. Howell, Asst. Atty. Gen., for the State.
MOZLEY, C. (after stating the facts as above). The first assignment of error is that instructions 1 and 2 given by the court are erroneous. No. 1, it is contended, is radically prejudicial because it charges the jury that defendant may be convicted if they find that he unlawfully and wrongfully and intentionally carried concealed about his person a certain deadly and dangerous weapon, etc. It will be noted that said instruction omits the use of the term "feloniously," and this is the crux of appellant's complaint concerning it. We are unable to agree with this contention. In the case of State v. Cummings, 206 Mo. 613, loc. cit. 623, 105 S.W. 649, 652, this court, speaking through Fox, P. J., ruled upon an identical contention as follows:
"This court has repeatedly held that instructions need not * * * be as broad as the charge in the information or indictment, and it was not essential in the instructions of the court to use the term 'feloniously.' If the acts of the defendant, as complained of in the information, were willfully, knowingly, falsely, and fraudulently done, the statute classifies the commission of such acts as a felony, and while it is essential in charging the offense in the information or indictment, in order to classify the offense, to charge that it was feloniously done, it is by no means essential that the term feloniously should be used in the directions of the court to the jury."
In the later cases of State v. Rader, 262 Mo. 117, loc. cit. 132, 171 S.W. 46, and State v. Massey, 274 Mo. 578, loc. cit. 589, 204 S.W. 541, the holding is the same as in the Cummings Case, supra. Under these authorities we conclude that it was not erroneous to omit from said instruction the term "feloniously," and accordingly rule the point against appellant.
The point is made that Instruction No. 2 is erroneous in not telling the jury, if they found from the evidence defendant did not intend to carry the weapon concealed, then he should be acquitted. The question of defendant's intention to carry a revolver was submitted to the jury by instruction No. 1, by which they were required to find as an element of the offense that he intentionally carried it, and instruction No. 2 merely advised them how intention could be proven. It would not have been proper to have instructed the jury that, if they found from the evidence defendant did not intend to carry the revolver concealed, because both the affirmative and negative of his intention in carrying it is contained, as above noted, in instruction No. 1; in other words, it would have been impossible for the jury to have returned a verdict of guilty without finding that the revolver was intentionally carried. Furthermore, we think there can be no serious controversy concerning defendant's intention to carry the revolver concealed. He, and his learned counsel as well, admit that he carried it concealed, and manifestly he intended to so carry it. Any other conclusion is too incredible for belief. We hold that instruction No. 2 was well enough, and rule this point against appellant.
Points 2 and 3 may be disposed of under one head. The first of these asserts that the verdict of the jury is against the overwhelming weight of the evidence, and point 3 asserts that the overwhelming weight of the evidence tends to establish the fact that at the time defendant was arrested and was carrying a revolver he was about to start on a trip from the state of Missouri to the state of Kansas, and had a right, under section 4496 of the Revised Statutes, to carry a revolver.(p.85)
As to point 2, asserting that the verdict is against the overwhelming weight of the testimony, a jury question is presented, and where, as here, there was substantial evidence tending to prove the state's contention, and the verdict of guilty was approved by the trial court, we are not at liberty to disturb the result, and we rule the point against appellant.
As to point 3 the question of whether appellant was about to start on a trip from Missouri to Kansas, and thus bring himself within the exception of section 4496, Revised Statutes 1909, giving him the right to carry the revolver, was likewise a question for the jury to pass upon; that is, it was their province and duty under the instructions of the court to weigh, the evidence upon the part of the state and upon the part of defendant and determine whether, in their judgment, it was sufficient to bring defendant within said exception. They found that it was not sufficient for that purpose, and we agree with their finding, and overrule the contention.
We think appellant has had a fair and impartial trial, and that his conviction should be affirmed.
It is so ordered.
RAILEY and WHITE, CC., concur.
PER CURIAM. The foregoing opinion of MOZLEY, C., is hereby adopted as the opinion of the court. All concur.