(273 S.W.)

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

the state penitentiary. Thereafter, said defendants, McGray and Barnett, filed motions for a new trial and in arrest of judgment, both of which were overruled. Thereafter judgment was rendered and said defendants appealed to this court.

A serious question is raised by appellants as to the competency of their codefendant, Thomas W. Asbury, to testify as a witness in behalf of the state, over their objection, while he was jointly charged with appellants, and without having been discharged under the provisions of section 4035, R. S. 1919. The testimony on the part of the state and defendants, including that of Thomas W. Asbury, is correctly and substantially stated by counsel for respondent, as follows:

had taken, and McGray told him he wanted $25 to buy the watch back, as he could return it to the owner. Witness gave him $10 in the presence of his brother, Archie Asbury, and later sent him $5 by his brother Archie. Witness did not send the articles stolen back to the owners by a messenger boy.

The evidence on behalf of the defendants tended to prove the following: That Amelia Allen, a bookkeeper and stenographer for the Eastern Auto Radiator Company, who lived in the same house with the defendants, saw these defendants on the night of July 28th at 1305 Cherry street; that she talked to them as late as 12 o'clock that night and then went to her room; that it was probably 30 minutes after she left them, before they went to their room, and they did not leave any more that night; that if they had left she could have heard them, as her room was right next to theirs.

The instructions and rulings of the court, as far as necessary, will be considered in the opinion.

Opinion.

court erred in permitting Thomas W. AsI. It is contended by appellants that the bury to testify as a witness for the state, over the objections and exceptions of appellants, while he was still jointly charged with appellants in the same information.

That between 1:30 and 2 o'clock on the morning of the 29th of July, 1924, Tony Lenge, his wife, Mabel Lenge, Miss Anna Jones, and Charles Cochrane drove up to the Lenge garage at the back of their apart ment at 1215 East Tenth street, Kansas City, Jackson county, Mo., and as Mrs. Lenge got out of the Buick touring car, in which they were riding, to open the garage doors, three men stepped from behind the garage, covered them with guns, and ordered "hands up," and the three bandits, who had handkerchiefs tied over their faces, got in the car. As they started to drive away, another man stepped up on the running board and, as he stepped up, his mask dropped off, and Tony Lenge recognized him to be Thomas Asbury, whom they had known for some time. Asbury, upon being recognized jumped off the car and left. The other three bandits drove the car on down to Thirteenth and Illinois and then ordered the witness and his three companions to get out. They obeyed and walked about a half block and called the police. They then got in a car and drove home. The bandits took $193 from Mrs. Lenge, $4 from Mr. Lenge, $13 from Anna Jones, and $10 from Charles Cochrane, together with a wrist watch, a cape, a diamond ring, and some pearl beads. "Mr. Asbury, you are one of the codefendAll the articles except the money were re-fendants on trial for this offense. You cannot ants in this case, charged jointly with the deturned to the owners by a messenger boy be compelled to testify or to incriminate yourabout 10 days later. self. The Constitution guarantees you that protection, but if you desire to testify voluntarily you have the right to do so."

None of the witnesses who testified for the state, except Thomas Asbury, were positive as to the identification of either of the defendants. The only one they were positively able to identify was Thomas Asbury.

It was shown by Thomas Asbury, a codefendant, that on the night of the 28th of July he, defendants McGray and Barnett, and a man named Spencer, were at the Lenge garage on the night of the robbery when the Lenges and their companions drove up in their car; that witness stepped on the running board of the car, and after staying there about 20 or 30 seconds jumped off and went on home. Witness had a conversation

At the trial, Thomas W. Asbury was sworn as a witness for the state, and thereupon H. P. Ragland, assistant prosecut..g attorney, who filed the information, suggested to the court that Asbury was a codefendant and could not testify for the state as long as this charge stood against him. The court ruled that Asbury could not be made to testify, but could do so of his own volition. Thereupon counsel for appellants objected to the competency of Asbury as a witness for the state under the circumstances aforesaid. This objection was overruled and an exception saved to this ruling. Thereupon the court said:

With the above knowledge imparted to Asbury by the court, he voluntarily testified as a witness for the state while being jointly charged with appellants. Counsel for the state, in their brief, concede that Prosecutor Ragland was right, and that error was committed by the court in permitting Asbury to testify as a witness for the state, over the objection of appellants, while he was still jointly charged with them in the information.

We are clearly of the opinion that both

(273 S.W.)

correct conclusions in holding that Asbury | city and going into Illinois; it being self-servwas an incompetent witness for the state ing statement.

ment held not part of res gestæ.

Defendant's statement to officer at time latter took revolver from defendant's coat pocket that he was leaving city and going into Illinois was not part of res gestæ.

under the circumstances aforesaid. Section 3. Criminal law 364 (5)-Self-serving state4035, R. S. 1919; State v. Chyo Chiagk, 92 Mo. 395, 4 S. W. 704; State v. Steifel, 106 Mo. 129, 17 S. W. 227; State v. Weaver, 165 Mo. loc. cit. 12, 65 S. W. 308, 88 Am. St. Rep. 406; State v. Conway, 241 Mo. 271, 145 S. W. 441; State v. Walls, 262 Mo. loc. cit. 110, 170 S. W. 1112; State v. Reppley, 278 Mo. 337 et seq., 213 S. W. 477; State v. Seward (Mo. Sup.) 247 S. W. loc. cit. 154; State v. Hayes (Mo. Sup.) 247 S. W. 165.

The plain provisions of this statute, and the above cases construing same, leave no room for cavil or doubt as to the incompetency of Asbury to testify as a witness for the state over the objection of appellants on the facts disclosed in this record. The trial court committed reversible error in permitting Asbury to testify for the state over defendant's objection while he was still jointly charged with appellant in the information. II. We have fully considered the other matters discussed by appellants in their brief; but as they are not likely to arise on the retrial of the case, we have not deemed it necessary to review them here.

On account of the error heretofore pointed out, the cause is reversed and remanded.

4. Weapons 17(1)—No variance between evidence of carrying weapon on person and charge of carrying it concealed about person.

Where gravamen of offense, under Rev. St. 1919, § 3275, was carrying weapon concealed on or about the person, there was no material variance between allegations of information charging that defendant carried a weapon concealed about his person and proof that he carried it on his person, in view of section 3907.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

Ray Renard was convicted of carrying a revolver concealed about his person, and he appeals. Affirmed.

Jesse W. Barrett, Atty. Gen. (Ellison A. Poulton, of Canton, of counsel), for the State.

HIGBEE, C. The defendant was convicted of carrying a revolver concealed about his person, and his punishment assessed at imprisonment for nine months in the city jail in accordance with the verdict of the jury.

The defendant was arrested on February.

20, 1923, as he was driving his car on the street in the city of St. Louis, and as he got out of the car the officer found a loaded revolver concealed in the pocket of defendant's coat.

[1] The information is based on section 3275, R. S. 1919. It charges the offense in the language of the statute and sufficiently charges the defendant with the felony of carrying a dangerous and deadly weapon concealed about his person. State v. Jackson, 283 Mo. 18, 222 S. W. 746, and State v. Whitman (Mo. Sup.) 248 S. W. 937.

[2, 3] The chief error assigned in the mo

(Supreme Court of Missouri, Division No. 2. tion for new trial is that the court erred in

June 5, 1925.)

1. Indictment and information 110(38)—Information in language of statute charged felony of carrying concealed weapon.

Information in language of Rev. St. 1919, § 3275, held sufficiently to charge defendant with felony of carrying dangerous and deadly weapon concealed about his person.

2. Criminal law 413(1)-Self-serving statement properly excluded.

There was no error in refusing to permit defendant, charged with carrying dangerous and deadly weapon concealed about his person, to prove on cross-examination of officer that at time latter took revolver from defendant's coat pocket he told him that he was leaving the

not permitting the defendant to prove on the cross-examination of the officer that at the time the officer took the revolver from the pocket of the defendant's coat the defendant told the officer he was leaving the city and going into the state of Illinois. This was a self-serving statement, and was properly excluded. State v. Musick, 101 Mo. 260, 274, 14 S. W. 212; State v. Moore, 156 Mo. 204, 211, 56 S. W. 883; State v. Powell (Mo. Sup.) 217 S. W. 38 (10). It was not a part of the res gesta. State v. Reeves (Mo. Sup.) 195 S. W. 1027, 1030, and State v. Powell, supra.

[4] Another error assigned is that the court erred in refusing to instruct the jury to ac

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 273 S.W.-67

or guilt, or raise any presumption of guilt, held not erroneous as comment on fact that defendant did not testify, in violation of Rev. St. 1919, § 4037.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

quit because of a material variance between it should not be construed to affect his innocence the allegations of the information and the evidence, in this, the information charges that the defendant carried a dangerous and deadly weapon concealed about his person, while the proof showed he carried it upon his person. A variance shall not be deemed ground for an acquittal of the defendant, unless the court, before which the trial shall be had, shall find that such variance is material to the merits of the case and prejudicial to the defense of the defendant. Section 3907, R. S. 1919. There was no variance. The gravamen of the offense is the carrying of the weapon concealed upon or about the person. State v. Conley, 280 Mo. 21, 25, 217 S. W. 29.

The instructions are in accordance with approved precedents, and fully and clearly advised the jury upon all questions arising in the case necessary for their information in giving their verdict. The verdict is supported by substantial evidence. No brief has been filed on behalf of the appellant, but we have carefully examined all the assign

ments of error contained in the motion for

new trial, and find them without merit. The judgment is therefore affirmed.

Ray Renard was convicted of feloniously carrying concealed about his person a loaded revolver, and he appeals. Affirmed.

Jesse W. Barrett, Atty. Gen., and George W. Crowder, Asst. Atty. Gen., for the State.

HIGBEE, C. The information charges that the defendant, on March 13, 1923, did

feloniously carry concealed about his person a deadly and dangerous weapon, to wit, a revolver, loaded with gunpowder and leaden balls. On a trial he was found guilty and sentenced to the penitentiary for a term of two years, in accordance with the verdict of the jury. No brief has been filed by appellant, nor is he represented here by counsel.

[1] The information is based on section 3275, R. S. 1919, and sufficiently charges the offense. It is not necessary that it should negative the exceptions contained in the proviso. State v. Price, 229 Mo. 670, 682, 129 S. W. 650; Kelley's Crim. Law (3d Ed.) § 193.

[2, 3] The defendant was arrested on the

night of March 13th as he was driving his

automobile on Olive street in the city of St. Louis. The officer who made the arrest, by feeling with his hand, found a loaded revolver on the floor of the car at the defendant's feet. The night was dark, and the revolver could not be seen. The defendant said it belonged to him. This was a con

(Supreme Court of Missouri, Division No. 2. cealment within the meaning of the statute. June 5, 1925.)

1. Indictment and information (I)-Information for carrying weapons held sufficient without negativing exceptions.

Information based on Rev. St. 1919, § 3275, denouncing felonious carrying of deadly and dangerous weapons concealed about the person, held sufficient to charge offense thereof; it not being necessary that it negative exceptions. 2. Weapons 10-Carrying loaded revolver on floor of automobile held "concealment" within statute.

Where officer, making arrest, by feeling with his hand, found a loaded revolver on floor of automobile at defendant's feet, the night being so dark that the revolver could not be seen, it was "concealment," within Rev. St. 1919, § 3275.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Conceal Concealment.]

State v. Conley, 280 Mo. 21, 25, 217 S. W. 29. The demurrer to the evidence was properly overruled. No specific complaint is made as to the instructions given for the state, except No. 4, which reads:

laws of this state, if the accused shall not avail "The court instructs the jury that under the himself of his right to testify on the trial in the case, it shall not be construed to affect the innocence or guilt of the accused, nor shall the same raise any presumption of guilt, nor be referred to by any attorney in the case, nor be considered by the court or jury before whom the trial takes place."

It is said this is a comment on the fact that the defendant did not testify, in violation of the statute. Section 4037, R. S. 1919. The very purpose of the instruction was to advise the jury that under the law the defendant was not required to testify, and that his failure to do so should not be considered by the jury, nor be permitted to raise a presumption of guilt. While this instruction In prosecution for carrying concealed weapwas unnecessary, it has been held not to be eron, instruction that, if accused did not testify, ror. State v. De Witt, 186 Mo. 61, 84 S. W.

3. Criminal law 787 (1)-Unnecessary instruction on effect of defendant's failure to testify not erroneous.

(273 S.W.)

956; State v. Taylor, 261 Mo. 210, 227, 168 S. mandamus, to compel defendants, Judges of W. 1191. The instructions given for the state the county court of Buchanan county, and are in accordance with approved precedents, and fairly and clearly submitted the case to the jury. Those asked by the defendant were properly refused. The judgment is affirmed.

(Supreme Court of Missouri. Division No. 2. ing to the statement of appellants, this re

Peter C. Breit and Stephen Fee, Pros. | jurisdictional question depends upon whether Attys., both of Savannah, and Perry A. Brubaker, Pros. Atty., of St. Joseph, for appel

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