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Edward Hogan was convicted of carrying STATE v. HOGAN. (No, 26107.) concealed weapons, and he appeals. Affirmed. (Supreme Court of Missouri, Division No. 2. Bass & Bass, of St. Louis, for appellant. June 5, 1925. Motion for Rehearing Over Robert W. Otto, Atty. Gen., and Geo. W. ruled July 2, 1925.)

Crowder, Asst. Atty. Gen., for the State. 1. Weapons 17(5)-Whether revolvers in

HIGBEE, C. The information charges that pocket on back of automobile seat occupied on June 5, 1922, the defendant did unlawfully by accused were concealed about his person and feloniously carry concealed about his held for jury. In prosecution for carrying concealed weap-on, to wit, one revolving pistol, etc. After

person a certain deadly and dangerous weapons, under Rev. St. 1919, § 3275, whether revolvers in pocket on back of seat of automobile, six continuances, three of which were on the which accused was driving, were concealed defendant's application, the case was tried, about the person of accused, held question for and the defendant was found guilty and senjury under evidence.

tenced to imprisonment in jail for 50 days, 2. Criminal law Omm 1169(3)-Admission of re

in accordance with the verdict of the jury. volvers not prejudicial, where accused ad

As the defendant was driving an automo mitted he was carrying one when' arrested.

bile in the city of St. Louis, on the day named In conviction for carrying concealed weap

in the information, with three male companons, assessing minimum imprisonment, where ions in the car, he was halted by a policeman, accused admitted that he carried a revolver who started to search the car. Defendant concealed upon his person, admission in evi- told the officer not to search the car and disdence of other revolvers found near accused played a star with the words "Beverage Inheld not prejudicial.

spector:” on it. The officer called two other 3. Weapons 13–Exclusion of evidence, in policemen. They found a pocket or compartprosecution for carrying concealed weapons,

ment on the back of the seat occupied by the that accused had been shot at, not error.

defendant. Four loaded revolvers

found concealed in this pocket or compartIn prosecution for carrying concealed weapons, exclusion of evidence, that shortly before ment within reach of the driver or of any alleged offense accused had been shot at, and one on the rear seat. The defendant objected had received letters threatening bodily harm, to the evidence, on the ground that the reheld not error, being no proper defense to pros- volvers were not accessible or closely accesecution, under Rev. St. 1919, § 3275.

sible to the defendant while driving the car.

The court overruled the objection, for the 4. Weapons Coll(1)-State deputy beverage reason that whether the revolvers were ac

inspector not entitled to carry concealed cessible to the defendant or not was a quesweapon; "officer."

tion of fact for the jury. The officers put deState deputy beverage inspector held not an "officer” entitled to carry concealed weapon,

fendant under arrest and took him to the ofwithin exceptions of Rev. St. 1919, § 3275, fice of the chief of detectives. Hogan had which applies only to sheriffs, police officers, put the four revolvers in his pocket at the and other persons with duty to execute pro- | time of his arrest and, upon reaching the cess, make arrests, or aid in conserving public chief's desk, took them from his pocket and peace, and to persons traveling in continuous laid them on the counter. He then took anjourney peaceably through the state.

other revolver from his hip pocket, saying: (Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Officer.] self; that is my own gun.”

"Here is another one I got that I carry my5. Criminal law On 814(12) - Refusal to in

It was loaded. One of the officers said that struct on good character not error.

Hogan took it from his holster, another that In prosecution for carrying concealed weap- he took it from his pocket, and a third that ons, where accused offered no evidence as to he took it from his hip pocket. They all said his character and it was not attacked by state, it was under the coat worn by Hogan and and therefore not in issue, refusal of court to

The defendant testified: instruction thereon held not error, in view of could not be seen. Rev. St. 1919, § 4025.

"At the time of my arrest I was chief depu6. Criminal law Ow785(8) - Instruction that ty state beverage inspector. My duties were jury might consider character of witness, in inspecting beer and soda water factories and

collecting the revenue from manufacturers over determining credibility, not error.

the state. At times I would have $2.000 or Instruction that jury, in determining credi- $3,000 on my person; sometimes more.

Bebility and weight, might consider character fore holding that office I have held the office of witness, held not error, notwithstanding of deputy constable and member of the state there was no evidence of character; jury being Legislature. I have never been charged or entitled to judge by looks and language of wit- convicted of any crime outside of this one.

I had a revolver on my person at the time of

my arrest. Appeal from St. Louis Circuit Court; V. H.

"Q. Whereabouts did you have it? A. There Falkenhainer, Judge.

in my back pocket. I think in my back pock

ness.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(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."

easy reach and convenient control; and upon

proof of this fact the offense is made out." Hogan had $17 on his person when ar

Under the evidence it was a question of rested.

The court excluded four anonymous letters fact for the jury to determine if these revolreceived by the defendant prior to his arrest, defendant, and the court, probably out of

vers were concealed about the person of the one postmarked January 6, 1922, warning him he was in danger of personal violence. abundant caution, went too far in withdrawThe other three letters, threatening his life, ing the evidence as to the four revolvers from

the consideration of the jury. However, the he found under his door. /

The court also excluded evidence offered state made a clear prima facie case against by the defendant that on May 19. 1922, shots the defendant. It showed that the defendant

carried the other revolver concealed upon his were fired into his house and that he carried the revolver for the purpose of protect

person from which ing himself against an attempt upon his life. it might well be inferred or presumed that This and the threatening letters were offered the person intended to do that which, in fact, in evidence as mitigating circumstances to be he did do, and, when this is true and this is?

sue is not controverted, it becomes of little considered by the jury in assessing the de

importance in the case.” State v. Carter, 259 fendant's punishment.

Mo. 349, 359, 168 S. W. 679, 681. At the close of the testimony the court overruled a demurrer to the evidence. The Defendant did not controvert that he carfirst instruction for the state is the usual one ried the revolver concealed upon his person, given in cases of this nature, and is in ac- but testified' he carried it for his protection ; cordance with approved precedents. The sec- that is, to use as a weapon. On the defendond instruction withdrew from the considera- ant's own showing, he was clearly guilty of tion of the jury all evidence as to the four the offense charged, and, in view of the verrevolvers taken from the pocket of the auto-dict assessing the minimum imprisonment, mobile. Instruction No. 3 is the usual in- there is no merit in the contention that destruction on the presumption of innocence, the fendant was prejudiced by the admission of burden of proof, and reasonable doubt; that the evidence. If there was error in admitthe jury are the sole judges of the weight and ting the evidence as to the four revolvers, credibility of the evidence. It then contin- was cured by the instruction withdrawing it

from the consideration of the jury. State v. "In determining such weight and credibility, ' Worten (Mo. Sup.) 263 S. W. 124, 127. you will take into consideration the character [3] 2. Appellant's learned counsel contend of the witness, his manner on the stand," etc. that the court erred in excluding the evidence

showing that shortly before the alleged ofInstructions 4 and 5 refer to the purpose of fense was committed defendant had been shot arguments of counsel, and are not criticized. at, and that he had received letters threatenThe court refused defendant's instruction ing him with bodily harm; that such evithat the defendant had a right to carry a dence was admissible in mitigation. In State weapon concealed upon his person if he was

v. Carter, supra, at page 360 (168 S. W. 681), at the time state deputy beverage inspector. Williams, C., said: He asked no other instructions.

"The court did not err in refusing to allow The case has been ably briefed and argued the defendant to prove that he had been threatby learned counsel for the state and the de-ened with great bodily harm, or had good reafendant.

son to carry the weapon in the necessary de[1, 2] 1. It is contended in appellant's brief fense of his person.

The above were proper that the court erred in admitting evidence of defenses, under section 1863, Revised Statutes

the finding of the four revolvers in the pock- 1899. But that section was repealed in 1909 ' et on the back of the seat of defendant's auto- and a new section (section 4496, R. S. 1909)

was enacted in lieu thereof. Laws 1909, p. mobile; that they were not concealed upon

452. or about defendant's person; and that this

“Those defenses are not available to the deerror was not cured by the instruction to dis- fendant charged with carrying concealed weapregard this evidence.

ons under the new act." It is a violation of the statute (section 3275, R. S. 1919) for one to carry concealed upon [4] 3. Section 3273 provides that nothing or about his person a dangerous or deadly contained in this section shall apply to legalweapon. It was in evidence that the four ly qualified sheriff's, police officers, and other revolvers were concealed in a pocket or com- persons whose bona fide duty is to execute partment on the back of the seat occupied by process, civil or criminal, make arrests, or the defendant and that they were within his aid in conserving the public peace, nor to reach and control. In State v. Conley, 280 persons traveling in a continuous journey Mo. 21, 23, 217 S. W. 29, Judge Walker said: peaceably through this state. A state deputy

ues :

beverage inspector is not one of the officers excepted in the proviso to the statute; hence STATE V. SCANLAN. (No. 26091.) the court properly refused the instruction prayed by the defendant. State v. Jamerson (Supreme Court of Missouri, Division No. 2.

June 5, 1925.) (Mo. Sup.) 252 S. W. 682, 686. Appellant's contention, if approved, would emasculate the 1. Weapons em 17(5)—Whether revolvers hidstatute.

den on seat between accused and another [5] 4. It is contended that the court erred were carried by accused concealed about his in not giving an instruction on the subject of person held for jury. good character. The appellant offered no In prosecution for carrying concealed evidence as to his character. It was not weapon, whether revolvers on seat of autoattacked by the state, and was not in issue. mobile; between accused and another, and hidAs there was no evidence as to the defend- den from view, constituted carrying deadly ant's character, the court properly refrained held jury question.

weapons concealed about person of accused, from giving an instruction on that subject. Section 4025, R. S. 1919; State v. Anslinger, 2. Criminal law ew1043(3)--Objections to 171 Mo. 600, 71 S. W. 1041; State v. Gar

evidence, not made at trial, could not be con

sidered. trell, 171 Mo. 491 (15), 71 S. W. 1045; State v. Byrd, 278 Mo. 426, 213 S. W. 35, 37.

Objections to admission of evidence and re[6] 5. Appellant insists the court erred in fusal to strike for reasons not urged at trial

cannot be considered on appeal. instructing the jury that, "In determining such credibility and weight,

3. Criminal law e363–Testimony as to weapyou will take into consideration the character

ons found in back seat of car, in prosecution of the witness," etc.

of driver, admissible as res gestæ.

In prosecution for carrying concealed weapThe criticism is that there was no evidence ons, testimony of revolvers found on floor of upon which to base the instruction.

back seat of car which accused was driving

This form of instruction has been approved from

held properly admitted as part of res geste. “time whereof the memory of man runneth 4. Criminal law m1 170/2(3)-Answer to not to the contrary." State v. Shelton, 223 question, rephrased after objection, held not Mo. 118, 138, 122 S. W. 732. This identical prejudicial. objection was urged against a similar in In prosecution for carrying concealed weapstruction and overruled in State v. Martin, ons, where arresting officer was asked if weap230 Mo. 680, 696, 132 S. W. 595, and in State on was concealed from public before accused v. Will Brown, alias Sweet Mike (Mo. Sup.) got out of car, and objection made, subse270 S. W. 275. In the Brown Case, Judge quent question as to whether officer saw weapWhite said:

on before accused got out, and answer to that

question, which was entirely free from objec“The instruction is further objected to be- tion, held not prejudicial, even if objection to cause it directs the jury to take into considera- first could have been carried over to last question the character of the witness, since there tion asked. was no evidence upon which to base any in

5. Criminal law Ow829618) Converse of struction relating to the character of any wit

charge on circumstantial evidence held suffiThe jury is not limited to a consideration of direct evidence regarding good or bad

ciently given to justify refusal of specific incharacter of a witness. It is composed of in

struction requested. telligent human beings, and can judge of the In prosecution for carrying concealed weapcharacter of a witness by his looks and what on, where court instructed on circumstantial he says. Many peculiarities which distinguish evidence, refusal to instruct on converse, as one individual from another come under this requested, held not prejudicial, in view of ingeneral term 'character,' without reference to struction that, if jury had reasonable doubt good or bad reputation, which is sometimes put that accused carried revolver concealed upon in proof. Appellant has not suggested any or about his person, it should acquit, which general term, which would more properly meet was sufficient to cover converse of circumthat requirement."

stantial evidence charge.

6. Criminal law O 1064(7)-Consideration of The foregoing are the objections urged in

instructions confined to objections called to appellant's brief. We have examined other

attention of court, in motion for new trial. assignments of error in the motion for new

Consideration of criticisms of instructions trial, and find them without merit.

will be confined on appeal to those called to The judgment is affirmed.

attention of trial court, on ·motion for new

trial. RAILEY, C., concurs.

7. Weapons w17(6)-Evidence held to justi.

fy instruction as to carrying concealed weapPER CURIAM. The foregoing opinion of

on prior to entering automobile. HIGBEE, C., is hereby adopted as the opin In prosecution for carrying concealed weapion of the court.

on, where accused and companions were shown All concur.

to have left building and entered automobile, For other cases see same topic and KEY-NUMBER in all Key-numbered Digests and Indexos

ness.

(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 Om 17(6)-Instruction allowing The officers testified that, when they finding of carrying weapon "upon” the person stopped the automobile and first looked into allowable under indictment for carrying weap- it, they saw no revolvers. The three revolve ons "about" the person.

ers on the front seat were within easy reach In prosecution for carrying concealed

of defendant. The testimony was that the weapons, where indictment was for carrying weapon “about" the person of accused, instruc- three revolvers on the floor could have been tion allowing finding that accused was carry- reached by defendant, at least if he had ing the weapon concealed upon his person held turned around in his seat and put his knees not error, as what is upon the person is about upon the cushion. the person;, "about” including everything in [1] I. It is urged that the demurrer to the cluded in the word "upon."

state's evidence should have been sustained. [Ed. Note.-For other definitions, see Words State v. Casey (Mo. Sup.) 247 S. W. 114, and and Phrases, First and Second Series, About.] State v. Rutledge (Mo. Sup.) 262 S. W. 718,

are cited in support of such contention. The Appeal from St. Louis Circuit Court; J.most casual reading of the facts, held in W. Calhoun, Judge.

those cases to be insufficient to sustain conPatrick Scanlan was convicted of carrying victions, will show that they fall far short of a concealed weapon, and he appeals. Af- the requirement that the facts and circumfirmed.

stances relied upon to establish guilt must be Bass & Bass, of St. Louis, for anpellant. entirely consistent with guilt and inconsistent

Robert W. Otto, Atty. Gen., and Harry L. with any reasonable hypothesis of innocence. Thomas, Sp. Asst. Atty. Gen., for the State.

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. MulBLAIR, J. Defendant was convicted in conry (No. 25780) 270 S. W. 375, decided the circuit court of the city of St. Louis of March 19, 1925, and not yet officially reportthe felony of carrying a concealed weapon. ed. However, in the Conley Case, defendant The jury assessed his punishment at a fine of $250 and imprisonment in jail for 60 days. Mulconry Case, the weapon was found on the

was the only one in the wagon, and in the From the judgment entered upon the verdict, seat on the right-hand side of defendant, he has appealed. Defendant offered no testimony. The evi

who sat at the right-hand side of the driver dence offered by the state consisted of the of the automobile. testimony of three police officers of the city

The presence of three loaded revolvers, of St. Louis. Such evidence tended to prove hidden from view upon the seat between dethat, at about noon on March 22, 1923, the fendant and Longo, together with the testidefendant and five other men were seen by mony tending to show that defendant and the said police officers to leave the home of Ed other men apparently had revolvers in their ward Hogan at 3035 Cass avenue in said city pockets when they left the Hogan house and and enter a seven-passenger automobile be. that they apparently took same from their longing to said Hogan. The officers, who al- | pockets when the officers attempted to halt so had an automobile, stopped the Hogan | their automobile, made a case for the jury automobile. One Willie Longo was driving i to say whether or not defendant carried a and defendant was seated beside him on the deadly weapon concealed about his person, right-hand front seat. After the officers suc

as charged in the indictment. ceeded in stopping the automobile and had or

II. (a) Defendant contends that certain dered the six men out on the sidewalk, three testimony should have been stricken out upon loaded revolvers were found upon the front his motion. Some previous effort had been seat between where defendant and Longo made to show what defendant and the other had been seated. Three of said men had been

men in the automobile did as the officers were seated in the rear and another on a small heading off their automobile. After the court folding seat. On the floor in front of the had stricken out the testimony upon defendrear seat three other loaded revolvers were ant's motion, the trial judge said to the witfound. No weapon was found upon the per- ness, Officer Archey, “Describe the moveson of, defendant or any of the other men.

ments as well as you can.” Archey said : While the officers were following the Hogan automobile and before they succeeded in drive front of them, they put their hands in their

"Well, as soon as they saw us come out in ing their own automobile in front of and pockets, like that. I couldn't tell which pockstopping it, defendant and the other men et, but you could see them going through the

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 con. Counsel 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 province of the jury. He may state where invasion of the province of the jury. The

they were. It is a question of fact for the

jury to determine whether they were or not. request was overruled and exception saved.

"The Court: He may state whether they This ruling is assigned as error.

were visible to him where he was. (To which [2] The defendant apparently has aban- action and ruling of the court defendant by doned the objections made below. He now his counsel then and there duly excepted and urges in his brief only that the answer that still excepts.) "they put their hands in their pockets,” etc.,

"Mr. Johnston: Q. Did you see them beshould have been stricken out, because the fore the defendant got out of the car? A. No,

sir." defendant alone was charged with the crime and what "they" did is not competent, rele The question objected to was not answered. vant, or material against defendant, as no The answer made was to a question against conspiracy was charged or proven. It is suf- which no objection was lodged, and which ficient to say that no such ground was urged was entirely free from the objection lodged against the answer at the time. If such rea- against the previous question, even if such son had then been urged, the trial court objection should be considered as carried might have sustained the motion. The trial over to the last question asked. The assigncourt was not called upon to pass upon the ments of error in the admission of testimony objection now urged and cannot be convicted are overruled. of error here, even though such objection III. (a) Defendant requested the court to might be regarded a valid one, if it had been give the following instruction: presented below.

"The court instructs the jury that you must [3] (b) It is contended that error was com- disregard all evidence as to the revolvers or mitted in respect to the following matter ap- pistols testified to by witnesses for the state pearing in the testimony of officer Archey : as having been found in the back part of the

automobile mentioned in evidence." "Q. Did you find, or any of the other officers in your presence, any revolvers in the rear

The reasons urged to convict the trial court seat?

of error in refusing this instruction are the "Mr. Bass: I object as immaterial, irrelevant, incompetent, not bearing in any wise same as those urged against the admissibilupon any matter involved, and not in any wise ity of the testimony itself. The assignment affecting the defendant here.

is overruled for the reasons above stated. "The Court: He may describe the entire sit [5] (b) The court refused to give defenduation there. Overrule the objection.

ant's requested instruction No. 4 on circum"A. Yes, sir."

stantial evidence. It was sufficiently cover

ed by instruction No. 3 given by the court, Exceptions were saved.

unless defendant was entitled to have his inWe think the reason given by the trial struction given as the converse of No. 3, court that the entire situation could be de- which did not direct the jury to find defendscribed was sound. The fact that three load- ant not guilty, if it did not find that the facts ed revolvers were found on the floor in front and circumstances proven were “inconsistent of the rear seat was part of the res gestæe with and unexplainable upon any other reaand could be shown. Of course, defendant sonable theory than that of defendant's could not be held criminally responsible for guilt." the acts of his companions, in the absence of

In State v. Majors (Mo. Sup.) 237 S. W. proof of a conspiracy; but it is always prop- 486, cited by defendant, the converse instrucer to show the facts and circumstances sur tion held to have been erroneously refused rounding and attending the alleged criminal dealt with the duty of the jury to acquit the act of a defendant on trial on the theory defendant if it found that he did not fire the that such facts constitute part of the res ges- fatal shot. The circumstances indicated the tæ. The general rule is laid down in 22 Cor- possibility that such fatal shot might have pus Juris, 470, 8 559, that

been fired by another. The refused instruc"Facts or circumstances attendant upon the tion went to the main issue of fact in the main fact in issue may be shown as part of the case.

The same situation existed in State res gestae, although they involve no idea of ac v. Shields, 296 Mo. 389, loc. cit. 404, 216 S. tion."

W. 932, also cited by defendant.

Even though defendant was entitled to an There was no merit in the objection. instruction, which was the converse one giy

!4) (c) Error is assigned as to the follow- en by the court upon a subject not involving ing matter which appears in the direct ex- the main facts in controversy (which it is amination of officer Grabbe:

unnecessary for us to decide), defendant's "Q. Here the revolvers loaded? A. Yes, sir. 'instruction No. 4, given after being modified "Q. Were they concealed from view of the by the court, told the jury that, if it had a

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