STATE v. ATHANAS.

(St. Louis Court of Appeals. Missouri. Oct. 24, 1910.)

1. Criminal Law--Appeal--Absence of Assignment of Error and Brief.
By provision of Rev. St. 1909, § 5312, the court must render judgment on the record on appeal, though there are no assignments of error before it, and no brief has been filed.

2. Weapons--Carrying Weapons--Evidence.
Evidence held sufficient to justify a conviction of carrying a concealed weapon; the evidence of the carrying being within an exception provided by Rev. St. 1899, § 1863 (Ann. St. 1906, p. 1285), being disbelieved.

3. Criminal Law--Appeal.
The court's finding of defendant guilty of carrying a concealed weapon will be treated as indicating that, as was its right, it disbelieved his story, tending to show that the carrying was within an exception to the statute; no proper declaration of the law, as to the circumstances under which he could lawfully carry the weapon, having been asked and refused, so as to indicate that the court had an erroneous view of the law.

4. Criminal Law--Evidence--Declarations.
Defendant's witness may not testify to a statement made by defendant to witness; such statement having been but a mere narrative of a past occurrence.

5. Indictment and Information--Sufficiency.
An information charging that defendant, at a certain time and place, did unlawfully carry concealed about his person a certain deadly and dangerous weapon, to wit, revolver pistol loaded with gunpowder and leaden ball, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state, is sufficient, as following the words of the statute.

Louis Athanas was convicted of carrying a concealed weapon, and appeals. Affirmed.

CAULFIELD, J. The appellant was convicted on June 9, 1908, of the offense, then a misdemeanor, of carrying a concealed weapon about his person; the prosecution being by information and the trial by the court.

There are no assignments of error before this court or briefs filed on behalf of either party; but nevertheless, under section 5312, Rev. St. 1909, the court must render judgment upon the record. There were no declarations of law asked or given and no objections by appellant as to the admissibility of testimony.

Appellant urged in his motion for a new trial, which was overruled and exception saved, that the finding was contrary to the law and the evidence. We cannot agree with this contention. Both the witness on behalf of the state, and appellant as a witness in his own behalf, testified that about 9 o'clock in the evening of the ---- day of ----, 1908, appellant was arrested as he was leaving a grocery at the corner of Second and Dorcas streets in the city of St. Louis, and that at that time he had a loaded revolver concealed in his pocket. This evidence was sufficient to justify a conviction unless it was shown that his carrying it came within the exceptions in section 1863, Rev. St. 1899 (Ann. St. 1906, p. 1285). State v. Julian, 25 Mo. App. 133; State v. Hovis, 135 Mo. App. 544, 116 S.W. 6. The exception evidently relied upon by appellant is stated by that statute as follows: "It shall be a good defense to the charge of carrying such a weapon, if the defendant shall show that he * * * had good reason to carry the same in the necessary defense of his person * * * or property." In support of this defense appellant testified that about six months before the night of his arrest, he had been assaulted and robbed while on his way to visit his friend the grocer at Second and Dorcas streets, the assault and robbery having occurred about two blocks away from the grocery, and that he had carried the revolver for the sole purpose of defending against a second such assault. If a proper declaration of law had been requested, setting forth the circumstances under which the appellant might lawfully carry the weapon, and had been refused, or if there was anything else in the record to indicate that the trial court entertained an erroneous view of the law in the case, the appeal might prevail. But nothing of the sort was done or occurred, and the trial court could believe or not appellant's story. State v. Roan, 128 Mo. App. 212, 106 S.W. 581. Its finding indicates it did not believe the story, and its finding will not be disturbed by us.

Appellant also urged in his motion for a new trial that the court excluded competent and legal testimony. The only testimony which was excluded by the court was the answer to the following question that was propounded by counsel for appellant to appellant's witness the grocer, as follows: "Q. Do you remember defendant telling you some six months before the night upon which he was arrested that while he was on his way to your house he was knocked down and robbed?" There was no error in sustaining the objection to this question. The statement mentioned therein as having been made by appellant to the witness was clearly nothing (p.374)but a mere narrative of a past occurrence, and for that reason was clearly inadmissible. 1 Greenleaf, Evidence (Lewis' Ed.) § 110; State v. Kelleher, 201 Mo. 614, 632, 100 S.W. 470.

Appellant in his motion in arrest of judgment, which was overruled and exception saved, stated that the facts set forth in the Information did not constitute a public offense. We must find this contention against the appellant also. That part of the information containing the charge is as follows: "That Louis Athanas, in the city of St. Louis, on the 2d day of June, 1908, did unlawfully carry concealed about his person a certain deadly and dangerous weapon, to wit, revolver pistol loaded with gunpowder and leaden ball, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state." Substantially the same language has been approved by this court as following the language of the statute. State v. Smith, 24 Mo. App. 413. We hold the information, therefore, to be sufficient.

Having carefully examined the entire record, and finding no error, the judgment is affirmed.