119 Mo. App. 265 | Mo. Ct. App. | 1906
The defendant was prosecuted by information on two counts: one for carrying concealed weapons on Ms person; and tbe other for the exhibition in a rude and threatening manner in the presence of divers persons a certainly deadly weapon. The jury on direction of the court rendered a verdict of not guilty on the second count. After hearing all the evidence and the instruction of the court, the jury rendered a verdict of guilty on the first count. After ineffectual motion for new trial and in arrest of judgment, the defendant has brought the case here by appeal. Neither side has filed any abstract, statement or brief. But in such cases the law requires us to examine the record and do justice to defendant.
We have examined the information and find it con
The court gave a number of instructions, among which was the following: “The court instructs the jury that, even though from the evidence you believe that defendant carried, concealed about his person, a certain deadly and dangerous weapon, to-wit, a revolving pistol, yet, if from the evidence you further believe that at the time he had been threatened with great bodily harm, or had good reason to believe that it was necessary for him to carry the same in defense of his person, you will find him not guilty, but before you can find the defendant not guilty it devolves upon him to show that at the time he so carried such pistol he had good reason to believe and did believe that the carrying of the same was necessary to his defense”
That part of the instruction, italicized, which cast the burden on defendant of proving that he had good reason to believe and did believe that it was necessary for him to carry the pistol in self-defense, was error. When he proved that his life was threatened, he made out a good defense under the statute. Section 1863, Revised Statutes 1899, allows a citizen to carry a concealed deadly weapon in certain instances — one where his life has been threatened, and another where he has good reason to carry the same in the necessary defense of his person, home or property.
. It is held by this court in the case of State v. Ven-able, 117 Mo. App. 501: “That in order to justify the defendant in carrying a concealed weapon he must have believed that there was danger of the threat being ex
The defendant asked _ the following instruction, which the court refused: “The court instructs the jury that if they believe, from the evidence in the case, the defendant, Everett Casto, had a broken pistol in his possession because he had been unable to find the machinist, who could repair- the same, and not for the purpose of using the same as a deadly weapon when the opportunity presented itself, then you must acquit the defendant.”
Although defendant had introduced evidence tending to show that his life had been threatened and that he had armed himself for self-defense, yet if on the night in question the pistol was not a deadly weapon because the mainspring was broken and could not be used as such, and if the reason for his having it in his possession at the time was because he could not find the machinist to repair it, he was not guilty of carrying a concealed deadly weapon within the meaning of the statute and he was entitled to have the jury consider his case from that standpoint. [State v. Murray, 39 Mo. App. 127; State v. Roberts, 39 Mo. App. 47; State v. Larkin, 24 Mo. App. 410.]
For the errors noted the cause is reversed and remanded.
SEPARATE OPINION.
The statute (section 1863, Revised Statutes 1899) reads that, “it shall be a good defense to the charge of carrying such weapon, if the defendant
As to the second statutory justification Avhich he may show for carrying a concealed weapon, viz., that he “had good reason to carry the same in the necessary defense of his person, home or property,” there may be some “good reason” aside from a threat which induced. him to carry the weapon. In shoAving such reason, whether threat or other thing, the defendant Avould show such things, which on their face would constitute a good reason for him believing it was necessary in the defense of his person, his home or his property. In making such showing he would make out a prima facie defense entitling him to an acquittal, if believed by the jury. If the State wished to uncover such prima facie defense, the burden would be upon it to do so.