State v. Hall

20 Mo. App. 397 | Mo. Ct. App. | 1886

Lead Opinion

Hall, J.

The court properly overruled the motion to quash the information. Section 1274, Revised Statutes, as amended in 1883 (Laws 'of 1883, p. 76), is as follows: “If any person shall carry concealed, upon or about his person, any deadly or dangerous weapon, or shall go into any church or place where people have assembled for religious worship, or into any school room or place where people are assembled for educational, literary or social purposes, or to any election precinct on any election day, or into any court room during the sitting of court, or into any other public assemblage of persons met for any lawful purpose, other than for militia drill or meetings, called .under the militia law of this state, having upon or about his person any kind of fife arms, bowie knife, dirk, dagger, slung-shot, or other deadly weapon, or shall, in the presence of one or more persons, exhibit any such weapon in a rude, angry, or threatening manner, or shall have or carry any such weapon upon or about his person when intoxicated or under the influence of intoxicating drinks, or shall directly or indirectly sell or deliver, loan or barter to any minor any such weapon, without the consent of the parent or guardian of such minor, he shall, upon conviction, be punished by a fine of not less than twenty-five nor more,” etc.

By this statute several distinct offences are created. The first offence, thus made, is the carrying by one, concealed upon or about his person, of any deadly or dangerous weapon. The general language used by the statute in defining that offence is not qualified or limited by the subsequent language of the statute as to particular weapons, because such subsequent language applies solely to the different offences created and defined by it, and not to the offence, already created and defined. The carrying by one, concealed upon or about his person, of any deadly or dangerous weapon whatever, whether mentioned in the subsequent part of the statute or not, or whether of the kinds so mentioned or not, is the offence made by the statute. It is not expressly stated in the bill of exceptions that the defendant here was a witness in the case of the State v. Henderson for Henderson. Such fact is, however, clearly inferable from the record herein. And we shall assume such to be the fact.

“ A witness will not be compelled to answer any question the reply to which would supply evidence by which he could be convicted of a criminal offence.” Wharton on Grim. Evid., sect. 463.

But in the case of the State v. Henderson, the defendant here, volunteered his testimony, in behalf of Henderson, concerning the transaction under investigation. Having voluntarily, as a witness for Henderson, given an account of that transaction, a transaction by reason of which he stood then charged, by a separate information, with the same offence as that for which Henderson was on trial, he could not decline a cross-examination on the ground that it would expose him to a criminality, growing out of that same transaction. He had volunteered an account of the transaction, by reason of which Henderson and he both stood separately charged, and he was subject to a full and complete cross-examination as to his account of said transaction. By giving an account of said transaction the defendant waived his right to refuse to . testify concerning it. Wharton on Crim. Evid., sect. 470, and cases cited.

The charge against the defendant is that of carrying concealed upon his person a certain deadly and dangerous weapon, to-wit, a pair of metal knucks. The charge is of carrying the weapon concealed upon his person. The question whether the weapon in proof was or was not a deadly or dangerous weapon could, therefore, in no way have depended upon the manner in which it was used, or the intent with which it was carried, unless it was carried in the necessary defence of his person, as. provided by section 1275, Revised Statutes, of which there is no pretense in this case ; but the question necessarily depended upon the character alone of-the weapon. In this case, therefore, the question whether the “brass knucks” in proof were or were not a deadly or dangerous weapon was a question of law for the court, and not a question of fact for the jury. Bishop on Statutory Crimes, sectionl320, and-cases cited; 1 Bishop on Criminal Law, section 198.

The record contains no further description of the 4 4 knucks ” in proof than that they were 44 a pair of brass knucks.” In holding that “apair of brass knucks” is a dangerous weapon within the meaning of our statute the court committed no error.

The first instruction given for the state limited the commission of the offence to any time since July 1, 1883, instead of a year prior to the filing of the amended information, to-wit, twelfth day of November, 1883. It was, of course, error to instruct the jury that they might find the defendant guilty of an offence committed between the filing of the amended information and the trial. The instruction given was open to that construction. The error, under the facts of the case, was, however, immaterial. The evidence related wholly to one ■offence, committed in October 1883. The error in the instruction, therefore, did the defendant no harm.

» The second instruction asked by the defendant was properly refused by the court. By that instruction the jury were told to find the defendant not guilty if they had a reasonable doubt of the concealment of the weapon upon the defendant’s person. The defendant was entitled to an instruction relative to the consequences of a reasonable doubt as to his guilt on the whole evidence in the case, but the defendant had “no1 right to single out each material fact necessary to be found, and ask the court to direct the jury that, if they have a reasonable doubt as to the existence of such fact, they must acquit.” The instruction given for the state properly submitted the question of the concealment of the weapon to the jury, and also the effect of a reasonable doubt of the defendant’s guilt on the whole evidence.

In my opinion the case was fairly tried and the judgment should be affirmed. But in the opinion of the other judges, the court erred in admitting the evidence of the statement forced from defendant, against his objection and protest, in the trial of the case of the State v. Henderson, and for that reason the judgment ought to be reversed and the cause remanded. The views of the other judges upon this point are expressed in , their separate opinion.

In accordance with their opinion it is ordered that the judgment be reversed and the cause remanded.

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Dissenting Opinion

SEPARATE OPINION.

Philips, P. J.

I dissent from so much of the foregoing opinion as holds that the court, under the circumstances, could first extort from the defendant an admission of his guilt, and then have this admission employed against him on an indictment or information founded on this admission. While it may be conceded that, after testifying in the case against Henderson, he was subject to cross-examination in detail, yet such cross-examination must be pertinent and relevant to the matter in chief, and to the issues embraced within the pending indictment. Henderson was on trial for illegally carrying a pistol. The witness, defendant here, testified that he saw no pistol on Henderson, that Henderson handed him no pistol, and that he had m> pistol. He was then asked as to what he did have. What he had was something else, not a pistol. The answer that he had brass knucks did not tend to prove the issue on trial. It was irrelevant, and wholly collateral, and as such the witness could not have been contradicted as to the statement. To hold that because he had voluntarily testified as to the issue, whether Hen derson had a pistol, would authorize the court to compel him to admit that he himself had another weapon, the having of which would subject him to prosecution, is not only unjust ttrthe witness, but its effect is mischievous in the administration of criminal justice, It would tend to deny to the prisoner on trial for one offence, the benefit of the witness’ testimony, if the witness could not state the facts about the matter on trial without incurring the hazard of being badgered into an admission of another distinct offence committed by him against the criminal law of the state. The witness foresaw that his answer, while not relevant to the case on trial, would tend to criminate himself in another offence, and it was his constitutional right to refuse to answer. And if the action of the court in compelling him to answer could be justified on the ground that the question was proper on its face, and the court could not foresee that it would criminate the witness, surely the least the court could have done, to preserve the constitutional privilege of the witness, would have been to deny to the state the right to use such answer, so forced against the consent of the witness, in a subsequent trial against him.

Ellison, J., •concurs in this dissent.