Town of Orrick v. Akers

| Mo. Ct. App. | Nov 28, 1904

ELLISON, J.

The defendant was arrested, tried and convicted for carrying concealed weapons in the town of Orrick. He appealed to the circuit court of Ray county and 'was again convicted. He now comes here for relief.

The main defense on the merits of the case was that the weapon (a pistol) was not concealed. The evidence relied upon by defendant is that going to show that he was in his shirt sleeves and a part of the handle of the weapon could be seen protruding from his pocket. The court refused an instruction for defendant in which it was declared that if “the pistol in question was not concealed, but was kept so carried as that the handle was exposed to public view” etc., the verdict should be for defendant. The court (liberally enough to defendant) modified the instruction by the following change: that, “if the pistol in question was not concealed but was so carried that enough of said pistol was exposed to public view to show plainly that it was a pistol” etc., to find for defendant. The change made by the court was proper and affords no just ground for criticism.

The complaint included with the present charge one for resisting an officer, but that was dismissed.

It is contended that the village of Orrick had no authority to pass the ordinance prohibiting the carrying of concealed weapons under the provisions of its charter (section 6010, Revised Statutes 1899). There is no express provision to that effect and it is not necessary that there should be. The general police power provided for in said section is ample upon which to base such authority. [St. Louis v. Schoenbusch, 95 Mo. 618" court="Mo." date_filed="1888-04-15" href="https://app.midpage.ai/document/city-of-st-louis-v-schoenbusch-8009330?utm_source=webapp" opinion_id="8009330">95 Mo. 618.]

It is next objected that the complaint was defective in that it whs in the name of the “Tillage of Or-rick” instead of the ‘ ‘ Town of Orrick.’’ The objection is not sound. "While it is true that the statute (section 6004) declares that the inhabitants of the village'shall be “a body politic and corporate, by the name and style of ‘The Town of----” yet the entire statute in reference to “Towns and Villages” — sections 6004-6066 — uses the words “town” and “village” interchangeably. And so in the complaint itself both these words are used. The full entitling thereof is, “State of Missouri, County of Ray, Town of Orrick, ss. Before Thos. Gallagher, Chairman of the Board of Trustees. The Village of Orrick, plaintiff, v. W. K. Akers, defendant. W. K. Akers to the Village of Orrick, Dr., to the violation," etc. It is clear to us that the objection is not well taken.

The judgment is affirmed.

All concur.