STATE v. WHITE. (No. 24213.)

(Supreme Court of Missouri, Division No. 2. July 14, 1923.)

1. Criminal law--Constitutionality of statute supporting information held timely attack by motion to quash.
An attack upon a statute supporting an information held timely when made in the form of a motion to quash.

2. Criminal law--Motion to quash held sufficiently definite in specification of alleged unconstitutionality of supporting statute.
A motion to quash an information, under Rev. St. 1919, § 3275, which alleged that the particular part of that statute upon which the information was based violated Const. art. 2, § 17, relating to a citizen's rights to keep and bear arms in defense of his home, person, and property, held sufficiently definite to raise a question of that statute's constitutionality.

3. Weapons--Statute prohibiting exhibiting of weapons held not unconstitutional.
Rev. St. 1919, § 3275, relating to the carrying of concealed weapons, and providing that, 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, * * *" held not violative of Const. art. 2, § 17.

4. Criminal law--Instruction stating abstract rights to bear arms in defense of home and property held properly denied as inapplicable to facts.
In a prosecution for exhibiting a dangerous and deadly weapon, in violation of Rev. St. 1919, § 3275, where defendant, after hearing a violent pounding at his door, was shown to have taken his shotgun and gone some distance to a street intersection, where he committed the acts complained of, held, that instructions stating his abstract rights to resist invasion and protect himself, home, family, and possessions by force, if necessary, and to bear arms for such purpose, were properly denied as inapplicable to the facts.

5. Witnesses--In prosecution for exhibiting weapons, cross-examination of defendant as to previous arrest held not error.
In a prosecution for exhibiting a dangerous and deadly weapon, in that accused had pointed a shotgun at a sheriff and threatened to kill him, where accused claimed he did not at first (p.725)know the person whom he assaulted, and, as tending to show the improbability of his assaulting the sheriff, claimed that they were good friends, and that he had supported him for office, held, that it was not improper to require him on cross-examination to testify that he had in fact been previously arrested by the sheriff.

6. Criminal law--Objection to testimony relative to matter already testified of held untimely.
In a prosecution for exhibiting a dangerous and deadly weapon, in that defendant had pointed it at a sheriff and threatened to kill him, where defendant had testified, without objection, concerning a previous search of his house by the sheriff, held, that a subsequent objection to testimony as to when such search was made was untimely, and properly overruled.

7. Weapons--Testimony as to removal of policeman's star held admitted as tending to establish ill will toward officers.
In a prosecution for exhibiting a dangerous and deadly weapon, in that accused had pointed a shotgun at a sheriff and threatened to kill him, testimony that on a day following the acts complained of he had taken a star off a special policeman, thrown it on the ground, and shot a hole through it, saying that that was what he was going to do to the officers, held properly admitted over objection to its competency, relevancy, and materiality, as tending to refute defendant's testimony that he had no ill will towards the officers.

8. Witnesses--Cross-examination of defendant as to previous arrests and convictions held proper.
Rev. St. 1919, § 5439, providing that convictions for criminal offenses may be proven to affect the credibility of witnesses, either by record or by cross-examination, is applicable as well to a defendant as a witness, and under it, in a prosecution for exhibiting a dangerous and deadly weapon, held, that defendant was properly cross-examined as to previous arrests and conviction for criminal offenses.

9. Criminal law--Only objection to testimony urged at trial can be considered on appeal.
On appeal, only those objections to testimony urged at trial can be considered.

10. Criminal law--Argument of counsel as to previous searching of defendant's home and his motive at time of exhibiting weapon held not prejudicial.
In a prosecution for exhibiting a dangerous and deadly weapon, in that accused had pointed it at a sheriff and threatened to kill him, where defendant was shown to have been previously arrested by that sheriff and another, argument of counsel, "Before we get very far in this case we find that these officers had arrested him and had searched his home with a search warrant, and that is the reason he had murder in his heart, because of these arrests that these officers had made," held not prejudicial, objection having been sustained to the portion relating to the searching of defendant's home.

11. Criminal law--Objection to argument of counsel specifying no ground therefor held insufficient.
Objection to argument of counsel, "I object to that statement and ask that the jury be instructed to pay no attention to it," held insufficient in that no ground of objection was stated.

12. Criminal law--Argument of counsel as to effect of acquittal on respect for law in county held not improper.
In a prosecution for exhibiting a dangerous and deadly weapon, argument of counsel, "And I would say that a verdict of not guilty in this case would do more to destroy the respect for the law in my county, in my own county here, than anything that could happen," held not improper.

Rano White was convicted of exhibiting a dangerous and deadly weapon, and he appeals. Affirmed.

Jesse W. Barrett, Atty. Gen., Robert W. Otto, Asst. Atty. Gen., and Stratton Shartel, Special Asst. Atty. Gen., for the State.

DAVID E. BLAIR, P. J. After a change of venue from Adair county, defendant was convicted in the circuit court of Knox county of the crime of exhibiting a dangerous and deadly weapon, as denounced by section 3275, R. S. 1919, and his punishment was assessed by the jury at imprisonment in the county jail for six months and a fine of $250. After having moved unsuccessfully for a new trial and in arrest of judgment, he was sentenced on the verdict, and has appealed. The appeal was granted to this court because a constitutional question was raised and because the conviction was for a crime punishable by imprisonment in the penitentiary, even though such punishment was not imposed. State v. Woodson, 248 Mo. 705, 154 S.W. 705; State v. Underwood, 254 Mo. 469, 162 S.W. 184.

The facts are few and simple. On or about the night of July 2, 1921, at about 11 o'clock, Emery D. Waddill, sheriff of Adair county, and A. G. McClelland, night watchman for the city of Kirksville, were walking along the streets of that city in the neighborhood of Centennial avenue and Martha street, near which point defendant and his wife resided. Having their interest attracted to an automobile parked at that corner and occupied by several men, the officers halted it as it was about to be driven away. The reason for stopping the automobile is unimportant. However, an arrest of one or more of the occupants was made.

While Waddill was standing on one side of the automobile and McClelland on the other, (p.726)defendant approached from behind Waddill with a shotgun in his hands, and before his presence was discovered leveled the gun at Waddill, cursed him, and said he was going to kill all the damned officers, and would start with Waddill. Waddill was unarmed, but McClelland stepped around the automobile, drew his revolver, and covered defendant with it. Defendant then lowered his gun and walked away. He was arrested two or three days later.

Defendant testified that some one had been pounding on the door of his house, and his wife awakened him. He then saw some one leaving his yard and going toward the standing automobile, and saw two or three men also. He claimed to have been robbed a short time previously, and thought that "somebody was trying to rob or steal something." He secured and loaded his shotgun and went out to investigate. In his own words "I went down and run into the 'Law' unexpected." If further facts appear necessary to an understanding of the issues involved, they will be set out in the opinion.

I. Both in the circuit court of Adair county and in the circuit court of Knox county defendant filed his motion to quash the information. Such motions were overruled in both courts, and timely exception was saved in the trial court. The motion to quash is based on the alleged fact that section 3275, R. S. 1919, is invalid because it violates section 17, art. 2, of our Constitution, in that said section of the Constitution guarantees to the citizen the right to keep and bear arms in defense of his home, his person and his property. Said section 17, art. 2, is as follows:

There is no evidence whatever in the record that at the time of the assault defendant was defending his home against invasion, his person against injury, and no substantial evidence that he was defending his property against loss or destruction. Defendant testified:

The assault upon Waddill occurred at a distance from his home, and defendant was the aggressor. He does not pretend to say that he thought the men he saw had any of his property. He simply took his gun and went out and away from his house to look into the cause of the violent knocking on his door, as he claims.

The assault upon the statute, as violative of the Constitution, is because such statute does not make the exception of the right of the citizen to bear arms, even when exhibiting the same in a rude, angry, or threatening manner, when such act is in defense of home, person, or property. The information must fall if the statute is invalid. The question was raised by motion to quash the information, and is timely. The motion pointed out the supposed conflict with sufficient definiteness to raise the constitutional question when it alleged that the particular part of section 3275, upon which the information is based, violates section 17, art. 2, of the Constitution, which guarantees to the citizen the right to keep and bear arms in defense of his home, person, and property.

We do not find that the constitutionality of the statute, when thus attacked, has been passed upon by this court. That part of the same section making it a crime to carry concealed weapons has been fully sustained. Convictions for exhibiting deadly weapons in a rude, angry, or threatening manner have been sustained in this court. For example, see State v. Gentry (Mo. Sup.) 242 S.W. 398. We have found no case where the constitutionality of that part of the statute has been discussed, and no such cases have been cited by counsel. Section 17, art. 2, of the Constitution authorizes the Legislature to prohibit the wearing of concealed weapons. Cases determining the constitutionality of that feature of the statute are cited, but they are not decisive of the exact question now before us, because of the exception in the constitutional provision.

Sections 1862 and 1863, R. S. 1899, were repealed by Laws of 1909, p. 342, and new section 1862 was enacted in lieu of the two former sections. New section 1862 (now section 3275, R. S. 1919) omitted from the exceptions the part of section 1863, R. S. 1899, above quoted. The words "carrying such weapon" in section 1863, R. S. 1899, clearly refer to the carrying of such weapon concealed. The repeal of that section did not change the law against exhibiting deadly (p.727)weapons in a rude, angry, or threatening manner.

The evident purpose of section 17, art. 2, is to render the citizen secure in his home, his person, and his property. Its purpose is to deny to the Legislature the power to take away the right of the citizen to resist aggression, force, and wrong at the hands of another. By no possible construction can that section of the Constitution be held to guarantee to the citizen the right to keep and bear arms for the purpose of his own aggression, wrong, or assault upon the person or property of another. The right of the citizen to keep and bear arms for his own protection or in aid of the civil power, when thereto legally summoned, is the only right guaranteed to the citizen. The moment the citizen ceases to act in protection of his home, his person, or his property, unless acting in aid of the civil power, he steps out from under the protection of the Constitution, and his right to bear arms may be taken away or limited by reasonable restrictions. The reasoning of the cases sustaining statutes prohibiting the carrying of concealed weapons is applicable here also. State v. Wilforth, 74 Mo. 528, 41 Am. Rep. 330; State v. Shelby, 90 Mo. 302, 2 S.W. 468; State v. Keet, 269 Mo. 206, 190 S.W. 573, L.R.A. 1917C, 60.

Although the citizen has the right to bear arms and to exhibit the same in a rude, angry, or threatening manner without fear of successful prosecution when his home or possessions are invaded or his personal safety threatened, he has no such rights as the aggressor himself. The statute must be reasonably construed, and, if a construction in harmony with the Constitution can be given to it, it is our duty to construe it in that manner. The only reasonable and sensible construction to give the statute is that the exhibitions of deadly weapons in a rude, angry, or threatening manner, when the act of aggression or assault is being committed by such citizen, is all that is prohibited.

The portion of section 3275, R. S. 1919, thus attacked is not only wise and salutary, and in the interest of public peace and the protection of human life, but is also in harmony with section 17, art. 2, of the Constitution, when its purpose is understood. The attack upon the statute and information is without merit.

II. Defendant assigns error in the refusal of his requested instructions 10 and 11. It is unnecessary to quote them. They are based on the theory that a man's house is his castle, which no man may invade, and that every man has the right to resist such invasion and to protect himself, his home, his family, and his possessions by force, if necessary, and to bear arms for such purpose, and to exhibit same in a rude, angry, and threatening manner. Both are proper abstract statements of the law, but neither has any application to the facts in this case. We have above pointed out that the acts complained of occurred at some distance from defendant's home. If some one had violently pounded on the door of his house, such person had abandoned his effort to arouse defendant, and had left his premises and gone to some distance away. Defendant does not contend, and the evidence clearly disproves, that Waddill or his party were upon defendant's premises that night. Defendant does not contend that whoever had pounded on his door had carried away any of his property. The act of such person in pounding violently upon his door, if such act was committed, is utterly inconsistent with an intention on his part to steal and carry away any of defendant's property. Such is not the usual conduct of a thief. The act of defendant in taking his shotgun and going away from his home to the street intersection and pointing the gun at Waddill and threatening to kill him indicates that his act was in revenge for the disturbance or for previous arrests, or possibly because he resented the act of the sheriff in making the arrest at the automobile. There is not the slightest substantial evidence that defendant was acting in defense of his home, his person, or his property when he made the assault upon the sheriff. Both instructions were properly refused.

III. Error is assigned because the trial court permitted improper cross-examination of the defendant.

(a) Defendant was asked if the sheriff had ever arrested him, and over his objection and exception was required to answer that the sheriff had arrested him. As a general proposition this would have been error (State v. Howard, 102 Mo. loc. cit. 148, 14 S.W. 937; State v. Wigger, 196 Mo. loc. cit. 99, 93 S.W. 390; State v. Duff, 253 Mo. loc. cit. 422, 161 S.W. 683), but, under the state of the record here, we think it was not error. Defendant claimed he did not know the person at whom he pointed the shotgun was the sheriff until he turned around, although he admitted that in his excitement he may have said, after he recognized Waddill, that he was going to kill him. To show the improbability of his assaulting the sheriff, he claimed he and the sheriff were good friends, and that he had supported him for office, and that he had no ill feeling toward the sheriff. We think it was proper to show that the sheriff had previously arrested him as tending to show defendant's motive, and that he had a grudge against him. The same considerations apply to the question asked and required to be answered in relation to a previous arrest by McClelland, the night watchman.

(b) Defendant was asked when the sheriff had searched his house, and was required to answer. He had been asked and had answered without objection concerning (p.728)the previous search of his house by the sheriff. His subsequent objection was not timely. This line of examination tended to show a motive for the assault by defendant and to disprove his claim of previous friendly relations with the sheriff.

(c) Defendant was asked if he had not taken the star off of a special policeman in Kirksville and thrown it on the ground and shot a hole through it, and if he had not then said that was what he was going to do to the officers. This was the day following the acts here complained of. The objection made was to the competency, relevancy, and materiality of the question. Defendant denied taking a star off of any one, but said the officer took it off himself, and he shot at it and hit it. He denied saying that that was what he was going to do to the officers. We think the objection made was not sound. If the acts and words indicated by the question were done and said, they tended to refute defendant's testimony as a witness that he had no ill will toward the officers.

(d) Defendant was asked and, over his objection that such question was incompetent, irrelevant, and immaterial, and tended to prove no issue in the case, and that the record is the best evidence, was required to answer that he had been arrested and convicted two or three times in the circuit or justice of the peace courts for criminal offenses. His answers indicated that such offenses were violations of the law against the sale of intoxicating liquors.

Section 5439, R. S. 1919, provides that convictions for criminal offenses may be proven to affect the credibility of the witness, either by the record or by the cross-examination of such witness. This section has been held to apply to defendant as a witness. State v. Spivey, 191 Mo. loc. cit. 111, 90 S.W. 81; State v. Heusack, 189 Mo. loc. cit. 312, 88 S.W. 21; State v. Barri (Mo. Sup.) 199 S.W. loc. cit. 138.

(e) None of the objections lodged by defendant to any of the foregoing cross-examination were based on the proposition that they did not constitute proper cross-examination of the defendant because the question related to matters not inquired about in chief. We do not mean to be understood as holding that such objections would have been good against any of the questions we have discussed if they had been made. We are not considering the propriety of the cross-examination from that angle, because no such objections were made. We can only pass on the soundness of the objections actually made. We mention the matter simply because counsel for the defendant urges the impropriety of such cross-examination for that reason in their brief, although they made no such objection at the time the testimony was offered. We find no reversible error in the cross-examination of defendant.

IV. The final assignment made in defendant's brief is that the trial court permitted improper argument by counsel for the state.

Counsel merely objected to the argument without stating the specific grounds, and requested the court to reprimand counsel. The court refused to reprimand counsel, but did sustain the objection as to the statement that defendant's home had been searched under a search warrant. Proceeding, Mr. Dorian then said:

Counsel for defendant then objected on the ground that defendant was not charged with murder, and again asked for reprimand of counsel for the state. The court overruled the objection, and we find no error in the ruling. We have previously found that it was not error, under the facts in this record, to ask defendant if he had not been previously arrested by Waddill and by McClelland. If the testimony was properly admitted there was no impropriety in arguing such testimony before the jury. Nor was it improper to argue that defendant had murder in his heart when he had pointed his gun at the sheriff and threatened to kill him.

(b) The only other objection to the argument, and the one the defendant claims was particularly prejudicial, was as follows:

The objection was overruled, and exception saved. While the objection was insufficient, in that no ground of objection was stated (38 Cyc. 1508), we do not think the argument was objectionable. Defendant cites and relies only upon the case of State v. Hess, 240 Mo. 147, 144 S.W. 489. The argument there held improper related to the statement by the circuit attorney of his belief in the guilt of defendant. Such statements have uniformly been held improper. The latest expression of this court upon the subject is found in State v. Cole (No. 24204, Mo. Sup.) 252 S.W. 698, handed down June 11, 1923.

The argument here made was evidently for the purpose of urging the jury to do its duty and vindicate the law. Such arguments have frequently been held not to be error. In State v. Hart, 292 Mo. loc. cit. 79, 237 S.W. loc. cit. 481, the following argument was approved:(p.729)

The cases cited by Judge White fully sustain the conclusion reached by him, and are sufficient to sustain the propriety of the argument made in the instant case. See, also, State v. Stamper, 159 Mo. App. 382, 141 S.W. 432. This disposes of all the assignments of error insisted upon by appellant in this court. Finding no reversible error below, the judgment is affirmed.