258 Mo. 253 | Mo. | 1914
Defendant was tried in the circuit court of the city of St. Louis upon an indictment containing two counts, the first of which charged him with carrying a concealed weapon, to-wit, a revolver, and the second thereof with having exhibited such weapon in a rude, angry and threatening manner, in the presence of divers persons named in the indictment. Being put upon his trial the court nisi, at the conclusion of all the evidence, instructed the jury to find the defendant not guilty on the first count in the indictment, but sent the case to the jury upon the second count. The jury found the defendant guilty thereon and assessed his punishment at a fine of $500 and imprisonment in the city jail for a period of sixty days. From this
Since the contention which defendant most strenuously urges upon us is based upon the failure of the court to instruct the jury on self-defense, and since such an instruction, if it was necessary in this case, must arise upon both the law and the facts, it becomes necessary to briefly state- these facts.
The persons in whose presence defendant is charged in the indictment with having exhibited the weapon, are Theodore B. Meyers, Ed. Jones, Rosie Cummings and Sarah Porter. The exhibition of the weapon took place at the house of the said Rosie Cummings, 2927 Lucas avenue, St. Louis. The facts upon which the defendant bases his contention that the court should have instructed upon self-defense come for the most part from the defendant himself, but there aré to he found in the testimony other statements from other and apparently disinterested • witnesses which tend to corroborate the defendant’s theory of self-defense.
Defendant testified that he was at the Cummings woman’s house on the morning of January 1, 1913, between half past one and two o ’clock; that while sitting in the back parlor thereof the prosecuting witness, Theodore B. Meyers, started to come into the room where defendant and others of his party were; that at the same time Meyers was making threats in a general way and expressing his desire to “burst a gun over somebody’s head;” that upon seeing defendant in the room Meyers requested a companion, one Chambliss, to assist him in putting defendant out of the house; that thereupon defendant remarked that he (defendant) had better leave, and got up and moved toward the door; that Meyers then began cursing him and he saw a knife in Meyers’s hand. Defendant then left the back parlor and went into the back end of the
Upon the trial defendant requested the court to give an instruction submitting the theory of justification on the ground of self-defense and actually prepared and submitted to the court such an instruction. This instruction the court refused to give and likewise refused to give any instruction whatever on self-defense. The court, as was stated in the beginning, took away from the jury the count which charged defendant with carrying the weapon concealed, on the ground that there was no sufficient testimony offered to convict him on that count.
The testimony for the State conclusively showed that defendant not only exhibited this pistol in a rude, angry and threatening manner in the presence of the persons named in the indictment, but that he struck the prosecuting witness over the head with this pistol five or six times; that in the difficulty the pistol was discharged and the prosecuting witness was shot
‘ The facts above stated are deemed sufficient to make clear the questions discussed in the subjoined opinion.
Other contentions made, such as that the court erred in admitting incompetent, irrelevant and improper testimony on the part of the State, and that the court permitted counsel for the State to engage in improper and unfair argument in his closing speech to the jury, we need not here consider, since it is not probable that these things will occur again.
A reference to this section will show that its provisions may be violated at least five different ways. Arguendo, we may say for the purpose of illuminating the point in hand, and not for the purpose of definite decision or to establish a hard-and-fast rule, that this section makes it an offense (a) to carry a dangerous or deadly weapon concealed upon or about the person; (b) to go into'any church or assembly for religious worship, or into any school room or place of public assembly, or to any election precinct on election day,
To repeat the point vexing, us and to reduce that point to its last analysis, we may propound the question: Does the proviso quoted contain all and every of the defenses which may be urged in any prosecution for any violation of any of the several offenses above analyzed and in said section denounced? We think it is manifest from the terms of said section alone and from so much of it as we have quoted, and wholly aside from the consideration of other rules of law or of abstract justice, that the conclusion that the proviso set out does mention all the defenses which are permitted to be made, is illogical and cannot be sustained. F'or it will be noted that it is made a felony to directly or indirectly sell such a weapon to any minor without the consent of such minor’s parent or guardian. Can it be urged with any basis of reason or logic that while it is an offense for the ordinary private citizen, who is not an officer, to sell dangerous and deadly weapons to minors, it is not an offense for a sheriff or a police officer, or a person traveling peaceably in a continuous journey through the State to make such sale? We
Nothing seems plainer than that such a possible condition was not intended and could not have been intended by the Legislature — if the rights and the safety of the citizen are intended to be protected — and that therefore the section does not in the proviso quoted, contain all of the exceptions and defenses open to one charged with exhibiting a dangerous or deadly weapon. If this is not so, then it lies within the power of the several prosecuting attorneys in the State in all cases where persons have used such weapons in protecting their lives or property from the assaults of others, absolutely to cut from under them one bona fide defense, by the simple expedient of indicting the defendant under the provisions of section 4496, instead of under sections 4481 or 4482, supra.
In our view, no such construction can in fairness be put upon the provisions of this section. If it was designed to abrogate the right of self-defense and if its affect be to do so, it is then more than possible that its constitutional validity might well be questioned, for that it whittles away a large part of that “natural
For these reasons we are of the opinion that the court erred in refusing to instruct the jury on self-defense, and that this case ought to be reversed and remanded to the end that it may be tried in accordance with these views. Let this be done.