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[Cite as State v. Gentry, 242 S.W. 398 (1922).]

STATE v. GENTRY. (No. 23403.)

(Supreme Court of Missouri, Division No. 2. June 8, 1922.)

1. Weapons--In prosecution for exhibiting deadly weapon in threatening manner, it was no defense that defendant had reason to carry the weapon for self-defense.
In prosecution for exhibiting a deadly weapon in a rude, angry, and threatening manner, in the presence of named persons, in violation of Rev. St. 1919, 3275, it was no defense that defendant had been threatened with great bodily harm, or had reason to carry the weapon in the necessary defense of his person, home, or property, in view of the legislative history of such statute.

2. Weapons--In prosecution for exhibiting dangerous weapon, refusal of instruction as to defendant's right to order prosecuting witness from his premises held properly refused, in view of evidence.
In the prosecution of one tenant for exhibiting a deadly weapon in a rude and threatening manner in the presence of another tenant, following dispute as to the use of certain premises, refusal of instruction as to defendant's right to order other tenant from premises rented by defendant held proper, in view of undisputed evidence that the exhibition of the weapon took place upon stairway, and not in rooms rented by defendant.

Appeal from Criminal Court, Greene County; Orin Patterson, Judge.

Morten Gentry was convicted of exhibiting a deadly weapon in a rude, angry, and threatening manner, in the presence of named persons, and he appeals. Affirmed.

An indictment was filed in the criminal court of Greene county, Mo., on December 16, 1920, charging that defendant, on December 4, 1920, in Greene county aforesaid, did unlawfully and feloniously, in the presence of O. M. Anderson, Mrs. S. S. Siler, and others, exhibit, in a rude, angry, and threatening manner, a deadly weapon, to wit, an automatic pistol, contrary to the form of the statute in such cases made and provided, etc. Defendant was arraigned, entered a plea of not guilty, tried before a jury on April 19, 1921, and the following verdict returned against him:

"We, the jury, find the defendant guilty in manner and form as charged in the indictment, and assess his punishment at a fine of one hundred dollars ($100.00)."

State's Evidence.

Respondent, at the trial, produced substantial testimony tending to show the following facts: That one O. M. Anderson and wife lived at 827 Violet street, New Springfield, Mo., in the home of S. S. Siler, in a two-story building, and occupied the two north rooms on the ground floor; that Siler and family lived in the other apartment on the same floor; that there was no bathroom or toilet on the lower floor, or connected with the premises, and the occupants of same were compelled to, and did, use the toilet on the second floor; that there were three rooms, a hall, and the bathroom with toilet, on the second floor; that the bathroom was entered by way of a door opening from the hall; that Mrs. Siler rented to defendant and his wife the three rooms upstairs, and told defendant he could have the exclusive use of the bathtub, but those below would have to use the toilet on the second floor, as there was no other connected with the premises; that said Anderson and family had permission from Mrs. Siler to use said toilet on the second floor; that on the early morning of December 4, 1920, said Anderson went to the bathroom and used said toilet; that as he returned, defendant asked him if he had permission to use said toilet; that Anderson advised him he had such permission; that appellant then said he would see Mrs. Siler; that, as Anderson was going downstairs, he heard appellant say something about "being run over"; that Anderson halted, and asked defendant who was running over him; that appellant then turned, came toward Anderson with a drawn pistol; that Anderson asked him, if he had seen Mrs. Siler, and defendant answered, "No;" that Anderson then said he would go and get her; that he got Mrs. Siler and they started up the stairway together, with Mrs. Siler in the lead; that Anderson then asked defendant why he had not seen Mrs. Siler, and defendant replied, "G----d you, I will shoot a hole through you," and advanced a step toward Anderson, with his gun in his hand; that Mrs. Siler caught appellant's arm, and Anderson went downstairs to his room; that Mrs. Siler said to appellant, "Morten, what are you doing?" and appellant answered, "That man can't come up these stairs," using an oath; that Mrs. Siler said, "Why?" and appellant answered, "He is just not coming up here;" that Mrs. Siler then said, "What is your objection?" that appellant said, "Well, he is just not coming up these stairs"; that appellant then started downstairs, until he got within two steps of where Anderson was standing, and said, "I will blow your head off," or brains out, or something of that kind, "if you come up these steps;" that Mrs. Siler said, "Morten, you are acting the fool; don't you know if you kill that man you will get your neck stretched?" that appellant replied, "I don't care; he is not coming up these steps; he is not going to use that toilet; I rented them rooms and I am not going to let him come up here;" that appellant was very mad.

Defendant's Evidence.

Appellant testified, in substance, that when he rented these rooms he was told by Mrs. (p.399)Siler that no one was to use the toilet and bath except himself, his wife, and friends that came to see them. He admitted having his pistol in his hand, but denied that he was holding it on Anderson, and also denied that he cursed Anderson.

Defendant's wife testified that they were to have the three rooms upstairs, the bathroom, and toilet. She admitted that the people on the lower floor had been using the toilet upstairs.

Several witnesses testified that they had never heard defendant's general reputation for being a peaceable and law-abiding citizen questioned.

The instructions given and refused, as well as the rulings of the court complained of, if any, will be considered later.

Defendant in due time filed his motion for a new trial, which was overruled. The court rendered judgment and passed sentence upon appellant in conformity to the terms of the verdict, and on the same day an appeal was granted defendant to this court.

Hamlin & Hamlin, of Springfield, for appellant.

Jesse H. Barrett, Atty. Gen., and Albert Miller, Asst. Atty. Gen., for the State.

RAILEY, C. (after stating the facts as above). I. It is contended by appellant that the court erred in giving instruction numbered 1 in behalf of the state, which reads as follows:

"The court instructs the jury that if they believe and find from the evidence that in the county of Greene and state of Missouri, on or about the 4th day of December, 1920, or at any time within three years before the finding of the indictment herein, the defendant, Morten Gentry, did unlawfully and wrongfully, in the presence of O. M. Anderson and Mrs. S. S. Siler, or either of them, exhibit a dangerous and deadly weapon, to wit, an automatic pistol, in a rude, angry, and threatening manner, you will find the defendant guilty as charged in the indictment, and assess his punishment by imprisonment in the penitentiary not exceeding two years, or by a fine of not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00), or by imprisonment in the county jail not less than fifty days nor more than one year, or by both such fine and imprisonment."

Section 3275, R. S. 1919, under which this indictment was drawn, reads as follows:

"If any person * * * shall, in the presence of one or more persons, exhibit any such weapon in a rude, angry or threatening manner, * * * he shall, upon conviction, be punished by imprisonment in the penitentiary not exceeding two years, or by a fine of not less than one hundred nor more than one thousand dollars, or by imprisonment in the county jail not less than fifty days nor more than one year, or by both such fine and imprisonment: Provided, that nothing contained in this section shall apply to legally qualified sheriffs, police officers and other persons whose bona fide duty is to execute process, civil or criminal, make arrests, or aid in conserving the public peace, nor to persons traveling in a continuous journey peaceably through this state."

Sections 1862, 1863, of the Revised Statutes of 1899, covering the above subject, were in direct terms repealed by the Acts of 1909, p. 452, and section 3275, R. S. 1919, enacted to cover both the repealed sections. It is manifest, that appellant's counsel are relying on that part of section 1863, R. S. 1899, which reads as follows:

"It shall 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." (Italics ours.)

It is evident that the Legislature by the repeal of said sections 1862 and 1863 and the enactment in lieu thereof of section 3275, R. S. 1919, intended to, and did, cut off the right to carry a pistol, unless the person in charge thereof is authorized so to do by Section 3275, supra. We are clearly of the opinion, that said instruction 1 is supported by substantial evidence, and that it properly declare the law of the case. Section 3275, R. S. 1919; State v. Carter, 259 Mo. loc. cit. 359, 168 S.W. 679; State v. Keet, 269 Mo. 206, 190 S.W. 573, L.R.A. 1917C, 60; State v. Conley, 280 Mo. 21, 217 S.W. 29; State v. Jackson, 283 Mo. 18, 222 S.W. loc. cit. 749.

2. Appellant likewise complains of the action of the court in refusing his instruction, which reads as follows:

"If you believe from the evidence that the defendant rented the exclusive use of the upstairs, and further believe that included the exclusive use of the toilet, then the defendant had the right to order the witness Anderson from the upstairs and refuse to permit him to use said toilet, if you find he did so order and refuse, and in so doing the defendant did not violate the law by having a pistol in his hand, unless you find he exhibited the same in a rude, angry, and threatening manner."

The undisputed testimony shows that the offense, if one was committed, did not occur in either of the three rooms rented by defendant, nor in the bathroom, but occurred on the stairway leading from the second floor to the ground floor. Defendant, in his direct examination, and on cross-examination, only claimed to have rented the three rooms and the bathroom, including the toilet. Anderson was not attempting to go into the bathroom, or either of defendant's three rooms when the offense was committed in this case. The instruction, as asked, was properly refused under the authorities supra. It was also properly refused, because the evidence discloses the trouble occurred on the stairway, and not in either of the rooms rented by plaintiff. The question as to whether Anderson had the lawful right to use the toilet in (p.400)controversy was not properly an issue in the case, and the court committed no error in refusing said instruction.

3. No other alleged errors are assigned by appellant, we think the indictment is sufficient, and that the instructions given by the court properly declare the law of the case. We find no error of which the appellant can legally complain.

The judgment below is accordingly affirmed.

REEVES, C., concurs

WHITE, C., not sitting.

PER CURIAM. (The foregoing opinion of RAILEY, C., is hereby adopted as the opinion of the court.