State v. Venable

93 S.W. 356, 117 Mo. App. 501, 1906 Mo. App. LEXIS 90

• Court: Missouri Court of Appeals
• Decided: April 2, 1906
• Status: Published

Opinion

ELLISON, J.

The defendant was charged under section 1862, Revised Statutes 1899, in an information, with carrying concealed weapons, a revolver. He was convicted in the trial court.

I. Among other defenses was that the prosecuting witness had threatened the life of defendant and that in consequence he had a right, under section 1863 of the statute, to carry the revolver. There was evidence tending to sustain the defense. Yet the court gave an instruction for the State peremptorily directing the jury to find defendant guilty if they believed he carried the concealed weapon; wholly ignoring his defense of threats. This was error.

If an instruction for the State requires the jury to find facts which necessarily exclude the defendant’s defense, then such defense need not be referred to. But in a case of this kind, where the defendant could admit the entire hypothesis submitted in the State’s instruction and yet innocent on account of his defense, such defense should not be ignored. This error was not cured by instructions for the defendant which submitted his defense. The instruction for the State was absolute,and made no reference to other instructions in the cause. Together, they were confusing and liable to do great harm.

II. Defendant asked an instruction which informed the jury that if threats had been made to kill him or to do him great bodily harm, which he had good reason to believe, that he had a right to carry the revolver; “and that this is true although the jury may believe that said defendant was in no danger of being killed or receiving any personal or bodily injury or. harm.” The court struck out that portion of the instruction in quotation. This, we think, was error. The statute (section 1863) provides that it shall be a good defense for carrying the weapon, “if the defendant shall show that he had been threatened with great bodily harm, or had good reason to carry the same in the necessary defense of his person, home or property.” We think that in order to justify the defendant in carrying a concealed weapon he must have believed that there was danger of the threat being executed. He could not make what he knew to be an idle or vain threat an excuse for carrying the forbidden weapon. But, on the other hand, if he did believe the threat might be executed, it would justify him in arming himself, though in point of fact there was, in reality, no danger of its being executed.

III. A Avitness testified that he had a conversation Avith Bunce SteAvart. That the latter Avas angry and talking in a threatening and excited manner; that his talk Avas in reference to killing defendant and that he said that he ought to kill the defendant. It is difficult to say, from the record, just Avhen this threat Avas communicated to defendant. The Avitness stated that he told him of it before the time Avhen it is charged defendant carried the Aveapon. Then he made a statement Avhich puts the matter'in doubt. If the threat Avas communicated to defendant before the time charged in the information, it should have been received in evidence, since it tended to malee up defendant’s defense.

With one exception, Ave do not discover any substantia] error in the rulings Avhich the court made on the evidence. The ruling on the extent of the cross-examination of defendant was really in accord with the objection made, since reference to a former trial was excluded. Other rulings A\rere not prejudicial to defendant, except that as to the question propounded to witness Riley as to why he stated he did not know how many times the revolver Avould shoot.

We think the information sufficient as drawn. So we are also of the opinion that there was sufficient evidence, considering reasonable inferences to be drawn therefrom, to support the charge therein.

IV. Defendant offered and the court refused instructions which declared that defendant had a right to carry concealed weapons “while on his OAvn. farm.” As the place fixed where defendant had the concealed weapon Avas in his field where he was drilling Avheat, the instructions, if correct, wére vitally important to defendant. We are, however, of the opinion that they were properly refused. It is urged that the law guarantees the defendant the right to defend himself on his farm; and so it does, whether on or off such farm, but the statute maíces no exception of that kind in the carrying óf concealed weapons.

The judgment will he reversed and the cause remanded.

All concur.