STATE v. HOGAN. (No. 26107.) (Supreme Court of Missouri, Division No. 2. June 5, 1925. Motion for Rehearing Overruled July 2, 1925.) 1. Weapons 17(5)-Whether revolvers in pocket on back of automobile seat occupied by accused were concealed about his person held for jury. Edward Hogan was convicted of carrying concealed weapons, and he appeals. Affirmed. Bass & Bass, of St. Louis, for appellant. Robert W. Otto, Atty. Gen., and Geo. W. Crowder, Asst. Atty. Gen., for the State. HIGBEE, C. The information charges that on June 5, 1922, the defendant did unlawfully and feloniously carry concealed about his person a certain deadly and dangerous weapIn prosecution for carrying concealed weap-on, to wit, one revolving pistol, etc. After ons, under Rev. St. 1919, § 3275, whether revolvers in pocket on back of seat of automobile, which accused was driving, were concealed about the person of accused, held question for jury under evidence. 2. Criminal law 1169 (3)-Admission of revolvers not prejudicial, where accused admitted he was carrying one when' arrested. In conviction for carrying concealed weapons, assessing minimum imprisonment, where accused admitted that he carried a revolver concealed upon his person, admission in evidence of other revolvers found near accused held not prejudicial. six continuances, three of which were on the defendant's application, the case was tried, and the defendant was found guilty and sentenced to imprisonment in jail for 50 days, in accordance with the verdict of the jury. As the defendant was driving an automobile in the city of St. Louis, on the day named in the information, with three male companions in the car, he was halted by a policeman, who started to search the car. told the officer not to search the car and displayed a star with the words "Beverage Inspector" on it. The officer called two other Defendant 3. Weapons 13-Exclusion of evidence, in policemen. They found a pocket or compartprosecution for carrying concealed weapons, that accused had been shot at, not error. In prosecution for carrying concealed weapons, exclusion of evidence, that shortly before alleged offense accused had been shot at, and had received letters threatening bodily harm, held not error, being no proper defense to prosecution, under Rev. St. 1919, § 3275. 4. Weapons (1)-State deputy beverage inspector not entitled to carry concealed weapon; "officer." State deputy beverage inspector held not an "officer" entitled to carry concealed weapon, within exceptions of Rev. St. 1919, § 3275, which applies only to sheriffs, police officers, and other persons with duty to execute process, make arrests, or aid in conserving public peace, and to persons traveling in continuous journey peaceably through the state. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Officer.] 5. Criminal law 814(12) Refusal to instruct on good character not error. In prosecution for carrying concealed weapons, where accused offered no evidence as to his character and it was not attacked by state, and therefore not in issue, refusal of court to instruction thereon held not error, in view of Rev. St. 1919, § 4025. 6. Criminal law 785(8)—Instruction that jury might consider character of witness, in determining credibility, not error. Instruction that jury, in determining credibility and weight, might consider character of witness, held not error, notwithstanding there was no evidence of character; jury being entitled to judge by looks and language of wit ness. Appeal from St. Louis Circuit Court; V. H. Falkenhainer, Judge. ment on the back of the seat occupied by the defendant. Four loaded revolvers were found concealed in this pocket or compartment within reach of the driver or of any one on the rear seat. The defendant objected to the evidence, on the ground that the revolvers were not accessible or closely accessible to the defendant while driving the car. The court overruled the objection, for the reason that whether the revolvers were accessible to the defendant or not was a question of fact for the jury. The officers put defendant under arrest and took him to the of fice of the chief of detectives. Hogan had put the four revolvers in his pocket at the time of his arrest and, upon reaching the chief's desk, took them from his pocket and laid them on the counter. He then took another revolver from his hip pocket, saying: self; that is my own gun." "Here is another one I got that I carry my It was loaded. One of the officers said that Hogan took it from his holster, another that he took it from his pocket, and a third that he took it from his hip pocket. They all said it was under the coat worn by Hogan and could not be seen. The defendant testified: Be "At the time of my arrest I was chief deputy state beverage inspector. My duties were inspecting beer and soda water factories and collecting the revenue from manufacturers over the state. At times I would have $2,000 or $3,000 on my person; sometimes more. fore holding that office I have held the office of deputy constable and member of the state Legislature. I have never been charged or convicted of any crime outside of this one. I had a revolver on my person at the time of my arrest. "Q. Whereabouts did you have it? A. There in my back pocket. I think in my back pock (273 S.W.) et, or either in my belt. I don't know which. The concealment, although not acI never carried a holster in my life. tually on the person, may be in such close "You were wearing a coat that day? A. I proximity to the accused as to be within his couldn't say that." Hogan had $17 on his person when arrested. The court excluded four anonymous letters received by the defendant prior to his arrest, one postmarked January 6, 1922, warning him he was in danger of personal violence. The other three letters, threatening his life, he found under his door. The court also excluded evidence offered by the defendant that on May 19, 1922, shots easy reach and convenient control; and upon proof of this fact the offense is made out." Under the evidence it was a question of fact for the jury to determine if these revoldefendant, and the court, probably out of vers were concealed about the person of the abundant caution, went too far in withdrawing the evidence as to the four revolvers from the consideration of the jury. However, the state made a clear prima facie case against the defendant. It showed that the defendant carried the other revolver concealed upon his person from which were fired into his house and that he carried the revolver for the purpose of protecting himself against an attempt upon his life."it might well be inferred or presumed that This and the threatening letters were offered in evidence as mitigating circumstances to be considered by the jury in assessing the defendant's punishment. At the close of the testimony the court overruled a demurrer to the evidence. The first instruction for the state is the usual one given in cases of this nature, and is in accordance with approved precedents. The second instruction withdrew from the consideration of the jury all evidence as to the four revolvers taken from the pocket of the automobile. Instruction No. 3 is the usual instruction on the presumption of innocence, the burden of proof, and reasonable doubt; that the jury are the sole judges of the weight and credibility of the evidence. It then contin ues: "In determining such weight and credibility, you will take into consideration the character of the witness, his manner on the stand," etc. Instructions 4 and 5 refer to the purpose of arguments of counsel, and are not criticized. The court refused defendant's instruction that the defendant had a right to carry a weapon concealed upon his person if he was at the time state deputy beverage inspector. He asked no other instructions. The case has been ably briefed and argued by learned counsel for the state and the defendant. [1, 2] 1. It is contended in appellant's brief that the court erred in admitting evidence of the finding of the four revolvers in the pock• et on the back of the seat of defendant's automobile; that they were not concealed upon or about defendant's person; and that this error was not cured by the instruction to disregard this evidence. It is a violation of the statute (section 3275, R. S. 1919) for one to carry concealed upon or about his person a dangerous or deadly weapon. It was in evidence that the four revolvers were concealed in a pocket or compartment on the back of the seat occupied by the defendant and that they were within his reach and control. In State v. Conley, 280 Mo. 21, 23, 217 S. W. 29, Judge Walker said: the person intended to do that which, in fact, he did do, and, when this is true and this issue is not controverted, it becomes of little importance in the case." State v. Carter, 259 Mo. 349, 359, 168 S. W. 679, 681. Defendant did not controvert that he carried the revolver concealed upon his person, but testified' he carried it for his protection; that is, to use as a weapon. On the defendant's own showing, he was clearly guilty of the offense charged, and, in view of the verdict assessing the minimum imprisonment, there is no merit in the contention that defendant was prejudiced by the admission of the evidence. If there was error in admitting the evidence as to the four revolvers, it was cured by the instruction withdrawing it from the consideration of the jury. State v. Worten (Mo. Sup.) 263 S. W. 124, 127. [3] 2. Appellant's learned counsel contend that the court erred in excluding the evidence showing that shortly before the alleged offense was committed defendant had been shot at, and that he had received letters threatening him with bodily harm; that such evidence was admissible in mitigation. In State v. Carter, supra, at page 360 (168 S. W. 681), Williams, C., said: "The court did not err in refusing to allow the defendant to prove that he had been threatened with great bodily harm, or had good reason to carry the weapon in the necessary defense of his person. The above were proper defenses, under section 1863, Revised Statutes 1899. But that section was repealed in 1909 and a new section (section 4496, R. S. 1909) was enacted in lieu thereof. Laws 1909, p. 452. "Those defenses are not available to the defendant charged with carrying concealed weapons under the new act." [4] 3. Section 3275 provides that nothing contained in this section shall apply to legally qualified sheriffs, police officers, and other persons whose bona fide duty is to execute process, civil or criminal, make arrests, or aid in conserving the public peace, nor to persons traveling in a continuous journey peaceably through this state. A state deputy STATE v. SCANLAN. June 5, 1925.) (No. 26091.) beverage inspector is not one of the officers excepted in the proviso to the statute; hence the court properly refused the instruction prayed by the defendant. State v. Jamerson (Supreme Court of Missouri, Division No. 2. (Mo. Sup.) 252 S. W. 682, 686. Appellant's contention, if approved, would emasculate the 1. Weapons statute. [5] 4. It is contended that the court erred in not giving an instruction on the subject of good character. The appellant offered no evidence as to his character. It was not attacked by the state, and was not in issue. As there was no evidence as to the defendant's character, the court properly refrained from giving an instruction on that subject. Section 4025, R. S. 1919; State v. Anslinger, 171 Mo. 600, 71 S. W. 1041; State v. Gartrell, 171 Mo. 491 (15), 71 S. W. 1045; State v. Byrd, 278 Mo. 426, 213 S. W. 35, 37. [6] 5. Appellant insists the court erred in instructing the jury that— "In determining such credibility and weight, you will take into consideration the character of the witness," etc. The criticism is that there was no evidence upon which to base the instruction. This form of instruction has been approved from "time whereof the memory of man runneth not to the contrary." State v. Shelton, 223 Mo. 118, 138, 122 S. W. 732. This identical objection was urged against a similar instruction and overruled in State v. Martin, 230 Mo. 680, 696, 132 S. W. 595, and in State v. Will Brown, alias Sweet Mike (Mo. Sup.) 270 S. W. 275. In the Brown Case, Judge White said: "The instruction is further objected to because it directs the jury to take into consideration the character of the witness, since there was no evidence upon which to base any instruction relating to the character of any witness. The jury is not limited to a consideration of direct evidence regarding good or bad character of a witness. It is composed of intelligent human beings, and can judge of the character of a witness by his looks and what he says. Many peculiarities which distinguish one individual from another come under this general term 'character,' without reference to good or bad reputation, which is sometimes put in proof. Appellant has not suggested any general term, which would more properly meet that requirement." The foregoing are the objections urged in appellant's brief. We have examined other assignments of error in the motion for new trial, and find them without merit. The judgment is affirmed. RAILEY, C., concurs. PER CURIAM. The foregoing opinion of HIGBEE, C., is hereby adopted as the opinion of the court. All concur. 17(5)-Whether revolvers hidden on seat between accused and another were carried by accused concealed about his person held for jury. In prosecution for carrying concealed weapon, whether revolvers on seat of automobile; between accused and another, and hidden from view, constituted carrying deadly weapons concealed about person of accused, held jury question. 2. Criminal law 1043 (3)-Objections to evidence, not made at trial, could not be considered. Objections to admission of evidence and refusal to strike for reasons not urged at trial cannot be considered on appeal. 3. Criminal law 363-Testimony as to weapons found in back seat of car, in prosecution of driver, admissible as res gestæ. In prosecution for carrying concealed weapons, testimony of revolvers found on floor of back seat of car which accused was driving held properly admitted as part of res gestæ. 4. Criminal law 11701⁄2 (3)—Answer to question, rephrased after objection, held not prejudicial. In prosecution for carrying concealed weapons, where arresting officer was asked if weapon was concealed from public before accused got out of car, and objection made, subsequent question as to whether officer saw weapon before accused got out, and answer to that question, which was entirely free from objection, held not prejudicial, even if objection to first could have been carried over to last question asked. 5. Criminal law 829 (18) Converse of charge on circumstantial evidence held sufficiently given to justify refusal of specific instruction requested. In prosecution for carrying concealed weapon, where court instructed on circumstantial evidence, refusal to instruct on converse, as requested, held not prejudicial, in view of instruction that, if jury had reasonable doubt that accused carried revolver concealed upon or about his person, it should acquit, which was sufficient to cover converse of circumstantial evidence charge. 6. Criminal law 1064(7)—Consideration of' instructions confined to objections called to attention of court, in motion for new trial. Consideration of criticisms of instructions will be confined on appeal to those called to attention of trial court, on motion for new trial. 7. Weapons 17(6) —Evidence held to justify instruction as to carrying concealed weapon prior to entering automobile. In prosecution for carrying concealed weapon, where accused and companions were shown to have left building and entered automobile, (273 S.W.) having been apprehended after having driven were seen going through motions such as a distance, evidence held to justify instruction usually accompany the act of taking an oballowing finding that accused carried loaded ject out of a pocket. As the six men left pistol or revolver concealed upon his person the Hogan house and ran across the street before entering automobile and while crossing to enter their automobile, the officers saw street. them apparently holding their coat pockets. 8. Weapons 17(6)-Instruction allowing finding of carrying weapon "upon" the person allowable under indictment for carrying weapons "about" the person. In prosecution for carrying concealed weapons, where indictment was for carrying weapon "about" the person of accused, instruction allowing finding that accused was carrying the weapon concealed upon his person held not error, as what is upon the person is about the person; "about" including everything inIcluded in the word "upon." [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, About.] Appeal from St. Louis Circuit Court; J. W. Calhoun, Judge. Patrick Scanlan was convicted of carrying a concealed weapon, and he appeals. firmed. Af Bass & Bass, of St. Louis, for appellant. Robert W. Otto, Atty. Gen., and Harry L. Thomas, Sp. Asst. Atty. Gen., for the State. BLAIR, J. Defendant was convicted in the circuit court of the city of St. Louis of the felony of carrying a concealed weapon. The jury assessed his punishment at a fine of $250 and imprisonment in jail for 60 days. From the judgment entered upon the verdict, he has appealed., The officers testified that, when they stopped the automobile and first looked into it, they saw no revolvers. The three revolvers on the front seat were within easy reach of defendant. The testimony was that the three revolvers on the floor could have been reached by defendant, at least if he had turned around in his seat and put his knees upon the cushion. [1] I. It is urged that the demurrer to the state's evidence should have been sustained. State v. Casey (Mo. Sup.) 247 S. W. 114, and State v. Rutledge (Mo. Sup.) 262 S. W. 718, are cited in support of such contention. The most casual reading of the facts, held in those cases to be insufficient to sustain convictions, will show that they fall far short of the requirement that the facts and circumstances relied upon to establish guilt must be entirely consistent with guilt and inconsistent with any reasonable hypothesis of innocence. The circumstances in this case are quite like those in the cases of State v. Conley, 280 Mo. 21, 217 S. W. 29, and State v. Mulconry (No. 25780) 270 S. W. 375, decided March 19, 1925, and not yet officially reported. However, in the Conley Case, defendant was the only one in the wagon, and in the Mulconry Case, the weapon was found on the seat on the right-hand side of defendant, who sat at the right-hand side of the driver of the automobile. The presence of three loaded revolvers, hidden from view upon the seat between defendant and Longo, together with the testimony tending to show that defendant and the other men apparently had revolvers in their pockets when they left the Hogan house and that they apparently took same from their pockets when the officers attempted to halt their automobile, made a case for the jury to say whether or not defendant carried a deadly weapon concealed about his person, as charged in the indictment. Defendant offered no testimony. The evidence offered by the state consisted of the testimony of three police officers of the city of St. Louis. Such evidence tended to prove that, at about noon on March 22, 1923, the defendant and five other men were seen by said police officers to leave the home of Edward Hogan at 3035 Cass avenue in said city and enter a seven-passenger automobile belonging to said Hogan. The officers, who also had an automobile, stopped the Hogan automobile. One Willie Longo was driving and defendant was seated beside him on the right-hand front seat. After the officers succeeded in stopping the automobile and had ordered the six men out on the sidewalk, three loaded revolvers were found upon the front seat between where defendant and Longo had been seated. Three of said men had been seated in the rear and another on a small folding seat. On the floor in front of the rear seat three other loaded revolvers were found. No weapon was found upon the person of, defendant or any of the other men. While the officers were following the Hogan "Well, as soon as they saw us come out in automobile and before they succeeded in driv- front of them, they put their hands in their ing their own automobile in front of and pockets, like that. I couldn't tell which pockstopping it, defendant and the other menet, but you could see them going through the II. (a) Defendant contends that certain testimony should have been stricken out upon his motion. Some previous effort had been made to show what defendant and the other men in the automobile did as the officers were heading off their automobile. After the court had stricken out the testimony upon defendant's motion, the trial judge said to the witness, Officer Archey, "Describe the movements as well as you can." Archey said: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes motion and leaning down as if they were taking | public before you saw them get out of the something out of their pocket." car? "Mr. Bass: I object to that. That is a conCounsel asked that said answer be strick-clusion on the part of the witness, invades the en out as a conclusion of the witness and an invasion of the province of the jury. The request was overruled and exception saved. This ruling is assigned as error. [2] The defendant apparently has abandoned the objections made below. He now urges in his brief only that the answer that "they put their hands in their pockets," etc., should have been stricken out, because the defendant alone was charged with the crime and what "they" did is not competent, relevant, or material against defendant, as no conspiracy was charged or proven. It is sufficient to say that no such ground was urged against the answer at the time. If such reason had then been urged, the trial court might have sustained the motion. The trial court was not called upon to pass upon the objection now urged and cannot be convicted of error here, even though such objection might be regarded a valid one, if it had been presented below. [3] (b) It is contended that error was committed in respect to the following matter appearing in the testimony of officer Archey: "Q. Did you find, or any of the other officers in your presence, any revolvers in the rear seat? province of the jury. He may state where they were. It is a question of fact for the jury to determine whether they were or not. "The Court: He may state whether they were visible to him where he was. (To which action and ruling of the court defendant by his counsel then and there duly excepted and still excepts.) "Mr. Johnston: Q. Did you see them before the defendant got out of the car? A. No, sir." The question objected to was not answered. The answer made was to a question against which no objection was lodged, and which was entirely free from the objection lodged against the previous question, even if such objection should be considered as carried over to the last question asked. The assignments of error in the admission of testimony are overruled. III. (a) Defendant requested the court to give the following instruction: "The court instructs the jury that you must disregard all evidence as to the revolvers or pistols testified to by witnesses for the state as having been found in the back part of the automobile mentioned in evidence." The reasons urged to convict the trial court of error in refusing this instruction are the same as those urged against the admissibil "Mr. Bass: I object as immaterial, irrelevant, incompetent, not bearing in any wise upon any matter involved, and not in any wise ity of the testimony itself. The assignment affecting the defendant here. "The Court: He may describe the entire situation there. Overrule the objection. "A. Yes, sir." Exceptions were saved. We think the reason given by the trial court that the entire situation could be described was sound. The fact that three loaded revolvers were found on the floor in front of the rear seat was part of the res gesta and could be shown. Of course, defendant could not be held criminally responsible for the acts of his companions, in the absence of proof of a conspiracy; but it is always proper to show the facts and circumstances surrounding and attending the alleged criminal act of a defendant on trial on the theory that such facts constitute part of the res gestæ. The general rule is laid down in 22 Corpus Juris, 470, § 559, that "Facts or circumstances attendant upon the main fact in issue may be shown as part of the res gestæ, although they involve no idea of action." There was no merit in the objection. [4] (c) Error is assigned as to the following matter which appears in the direct examination of officer Grabbe: "Q. Were the revolvers loaded? A. Yes, sir. is overruled for the reasons above stated. [5] (b) The court refused to give defendant's requested instruction No. 4 on circumstantial evidence. It was sufficiently covered by instruction No. 3 given by the court, unless defendant was entitled to have his instruction given as the converse of No. 3, which did not direct the jury to find defendant not guilty, if it did not find that the facts and circumstances proven were "inconsistent with and unexplainable upon any other reasonable theory than that of defendant's guilt." In State v. Majors (Mo. Sup.) 237 S. W. 486, cited by defendant, the converse instruction held to have been erroneously refused dealt with the duty of the jury to acquit the defendant if it found that he did not fire the fatal shot. The circumstances indicated the possibility that such fatal shot might have been fired by another. The refused instruc tion went to the main issue of fact in the The same situation existed in State. v. Shields, 296 Mo. 389, loc. cit. 404, 246 S. W. 932, also cited by defendant. case. Even though defendant was entitled to an instruction, which was the converse one given by the court upon a subject not involving the main facts in controversy (which it is unnecessary for us to decide), defendant's instruction No. 4, given after being modified |