131 Mo. App. 617 | Mo. Ct. App. | 1908
By information containing two-counts, filed in the Oregon county circuit court, defendant was charged in the first count with unlawfully carrying a pistol concealed on his person; by the second count with unlawfully exhibiting a pistol in the presence of J. M. Huddleston, Ira Hiill and Joe Mooney,.
“You are instructed in this case that if you believe from the evidence that at the time the matters charged in the information herein, occurred, the defendant was moving or traveling peaceably through this State, then you should find the defendant not guilty."
The court refused to grant the instructions and instructed the jury as follows:
“1. If you believe from the evidence that defendant at the time of the alleged offense was peaceably traveling in the State or just about starting on a trip, then he would have a right while so traveling, to carry a pistol concealed on or about his person and you should acquit him on the first count of the information.
2. If you believe from the evidence beyond a rea- - sonable doubt that this defendant at any time about the, second day of January, 1907, in Oregon county, Missouri, did exhibit a pistol in a rude, angry or threatening manner in the presence of J. M1. Huddleston, Ira*619 Hull and Joe Mooney, or either of them, then you should find the defendant guilty on the second count of the information and assess his additional punishment at a fine not less than fifty, nor more than two hundred dollars,. or by imprisonment in county jail not less than five days or more than six months, or by both such fine and imprisonment.”
Defendant’s contention is that instruction numbered 1 should have been given so as to apply to both counts of the information; that is, that the fact, if shown to the satisfaction of the jury, that defendant was peaceably traveling in the State, or was starting on a trip to Arkansas, then he was not guilty under either count of the information. Both counts of the information are bottomed on section 1862, Mo. Ann. St. 1906. This section creates, several distinct offenses, one of which is committed by any person carrying concealed upon or about his person any deadly or dangerous weapon. Another one is committed if any one “shall, in the presence of one or more persons, exhibit any such weapon (any deadly or dangerous weapon) in a rude, angry or threatening manner.” The information charges defendant with the commission of these two offenses. The next succeeding section (1863) provides that section 1862 shall not apply to police officers. . . . “Nor to persons moving or traveling .peaceably through this State.” Defendant insists that as he was traveling through this State he could not be .adjudged guilty of any of the offenses created by section 1862, and cites the case of State v. Mosby, 81 Mo. App. (K. C.) 207, as supporting this contention. In that case and in the case of State v. Pollock, 49 Mo. App. 445, it was ruled that an officer of the law whose duty it is to execute civil and criminal process is not amenable to section 18£2; that the section does not apply to him and his exemption from the provisions of the section is not subject to qualifications. The same ruling
The judgment is affirmed.