State v. McMilian , 1983 Mo. App. LEXIS 3892 ( 1983 )

NUGENT, Judge,

concurring.

Although I agree that the defendant’s conviction must be affirmed, I am concerned with the majority opinion’s extensive treatment of the merits of the constitutional issues — not with the substance of that treatment, but with the fact that it is included at all. This court simply has no jurisdiction to consider the validity of the statute, and ordinarily, where validity is truly an issue, transfer to the Supreme Court is warranted. Mo. Const, art. V, § 3.

Where consideration of the asserted constitutional question is not necessary to disposition of the case on appeal, however, transfer is not required. See St. Louis County Transit Co. v. Div. of Employment Sec., 456 S.W.2d 334, 338 (Mo.1970). For the question to be considered necessary, the defendant raising the constitutionality of a statute must show that it is unconstitutional as applied to him. He may not raise the hypothetical claims of others against whom the statute might be unconstitutionally applied. United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960); State v. Valentine, 584 S.W.2d 92, 96 (Mo.1979) (en banc).

Here, by the language in the jury instruction, the defendant was found guilty of “exhibiting a deadly weapon in a rude, angry and threatening manner.” Because the statute forbids the exhibition of “weapons in a rude, angry or threatening manner” a finding of guilt on any of these three would have been sufficient for conviction under § 571.115. Defendant’s constitutional arguments concern only the vagueness and overbreadth of “rude” and “angry”. He does not challenge the constitutionality of a conviction for “threatening” behavior. That being so, even if the words “rude” and “angry” were held to be vague and over-broad, the defendant would remain convicted for exhibiting a weapon in a threatening manner, an offense clearly punishable under § 571.115. The vagueness and over-breadth questions, then, have no bearing on this case.

Accordingly, the constitutional question raised in this case is unnecessary and we need neither transfer the matter to the Supreme Court nor discuss the merits of the issues.