State v. Scanlan , 308 Mo. 683 ( 1925 )

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 sixty days. From the judgment entered upon the verdict, he has appealed.

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, the 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 automobile and before they succeeded in driving their own automobile in front of and stopping it, defendant and the other men were seen going through motions such as usually accompany the act of taking an object out of a pocket. As the six men left the Hogan house and ran across the street to enter their automobile, the officers saw them apparently holding their coat pockets.

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.

I. It is urged that the demurrer to the State's evidence should have been sustained. State v. Casey, 247 S.W. (Mo.) 114, and State v. Rutledge, 262 S.W. (Mo.) 718, are cited inDemurrer to support of such contention. The most casual readingEvidence. 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, and State v. Mulconry, 270 S.W. 375. 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.

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 theEvidence. 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, "Well, as soon as they saw us come out in front of them they put their hands in their pockets, like that. I couldn't tell which pocket, but you could see them going through the motion and leaning down as if they were taking something out of their pocket." Counsel asked that said answer be stricken 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.

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.

(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?

"MR. BASS: I object as immaterial, irrelevant, incompetent, not bearing in any wise upon any matter involved, and not in any wise 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 gestae 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 theres gestae.

The general rule is laid down in 22 Corpus Juris, p. 470 sec. 559, that "facts or circumstances attendant upon the main fact in issue may be shown as part of the res gestae, although they involve no idea of action." There was no merit in the objection.

(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.

"Q. Were they concealed from view of the public before you saw them get out of the car?

"MR. BASS: I object to that. That is a conclusion on the part of the witness, invades the 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 backInstructions. 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 admissibility of the testimony itself. The assignment is overruled for the reasons above stated.

(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, unlessConverse: defendant was entitled to have his instructionCircumstantial given as the converse of number 3, which did notEvidence. 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, 237 S.W. (Mo.) 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 instruction went to the main issue of fact in the case. The same situation existed in State v. Shields,296 Mo. 389, l.c. 404, also cited by defendant.

Even though defendant was entitled to an instruction which was the converse of 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 by the court, told the jury that, if it had a reasonable doubt that defendant carried the revolver concealed upon or about his person, it should acquit. This was a sufficient converse instruction. The instruction upon circumstantial evidence requested by defendant merely dealt with the effect the jury should give to the circumstantial evidence necessarily considered in determining guilt or innocence under defendant's Instruction No. 4 and the other instructions, and the instruction asked was properly refused.

Instruction No. 4, asked by defendant and refused by the court, is in the same form as one given for defendant, after modification, in State v. Howell, 117 Mo. 307, 326, 344. This court there simply held that the trial court did not err in modifying the instruction requested. It did not hold that the court would have committed error if it had not given an instruction on circumstantial evidence in that particular form.

But defendant contends that Instruction No. 3, given by the court, did not properly declare the law upon circumstantial evidence and relies upon State v. Garrett, 276 Mo. 302, l.c. 310. The instruction in that case was held to be free from the vice of permitting the jury to pile inference upon inference. Defendant there contended that the instruction authorized the jury to draw inferences from certain proven facts and circumstances and from the inference thus drawn to infer guilt. The instruction here criticized does not contain the language which gave rise to the attack upon the instruction in the Garrett case.

(c) Instruction No. 2, given for the State, is assailed. It reads as follows:

"The court further instructs the jury that in order to warrant a conviction it is not necessary for the State to prove that the defendant carried a loaded pistol concealed upon his person, but that it is sufficient to show that he carried it concealed about his person; to be carried about his person it must appear that it was so placed as to be within his easy reach and convenient control, and in order to be concealed it must have been so placed as to escape the ordinary observation of persons coming near enough to defendant to see the weapon if carried openly; in other words, if it were so placed that it would require a search to see it then it would be concealed.

"Whether the defendant carried a weapon upon or about his person, and whether it was concealed, are questions for you to determine from all the facts and circumstances shown in evidence.

"If, therefore, you find that the defendant, either before entering the automobile and while crossing Cass Avenue, carried a loaded pistol concealed upon his person, or if after entering the automobile he carried it concealed upon his person, or carried it by placing it upon the front seat or upon the floor of the automobile in a position within easy and convenient reach to him, but so placed as to be concealed from view, in the sense of the word ``concealed' as hereinbefore explained, then the defendant would be guilty of carrying a concealed weapon.

"The court further instructs the jury that if you find that the defendant carried concealed upon or about his person a deadly and dangerous weapon, then you will find him guilty, notwithstanding that you may find and believe that the said weapon was the property of some other person."

In his motion for new trial defendant made the following assignment of error as to said Instruction No. 2:

"Because Instruction No. 2 misdirects the jury as to material matters of law necessary for their information, misstates the law and assumes the existence of facts not in evidence, and further instructs the jury that they may find defendant guilty of carrying a loaded pistol or revolver concealed upon his person before entering the automobile mentioned in evidence and while crossing Cass Avenue, whereas, there is absolutely no evidence upon which to base such instruction."

We must here confine defendant to the criticism of said instruction called to the attention of the trial court in said motion for new trial. It appears that the specific objection then made was that there was no evidence that defendant carried a loaded pistol or revolver concealed upon his person before entering the automobile and while crossing Cass Avenue. The fact that defendant and the other men were seen holding their pockets as they hurried down the steps and crossed the street to the automobile, in connection with the evidence tending to show that defendant and said other men were seen to make motions as if taking something out of their pockets and the finding of loaded revolvers hidden from view and within easy reach of defendant, tended to show that defendant was carrying such weapon concealed upon his person before entering the automobile. The indictment did not limit the charge to what occurred in the automobile.

In addition to the foregoing, defendant here contends that the trial court erred in permitting the jury to find defendant guilty if he carried the deadly weapon concealed upon his person, whereas the indictment charged him with carrying it concealedabout his person. Had the indictment charged defendant with carrying the weapon concealed upon his person and had the instruction authorized conviction if defendant carried it about his person, there might be some reason for saying that the instruction broadened the issues and authorized conviction for a crime not charged. It needs no argument to demonstrate that anything which is upon the person is about the person. The word "about" includes everything included in the word "upon" and, of course, may include much more. The greater includes the lesser.

IV. Finding no reversible error in the record, the judgment must be and is affirmed. All concur.