Cite as State v. Collins, 879 S.W.2d 585 (Mo.Ct.App. 1994)

                 State of Missouri, Respondent,

                               v.

                   Gary R. Collins, Appellant.

                          No. WD 48205.

          Missouri Court of Appeals, Western District.

                         April 26, 1994.

Motion for Rehearing and/or Transfer to Supreme Court Denied May
31, 1994.  Application to Transfer Denied Aug. 15, 1994.

     Jason S. Ginsberg, Asst. Public Defender, Kansas City, for
appellant.

     Jeremiah W. (Jay) Nixon, Atty. Gen., John R. Watson, Asst.
Atty. Gen., Jefferson City, for respondent.

     Before ULRICH, P.J., and BRECKENRIDGE and SPINDEN, JJ.

     SPINDEN, Judge.

     In the trial of Gary R. Collins on a charge of carrying a
concealed weapon, [footnote 1] the trial court concluded that the
so-called traveler's exemption was not applicable to his case. 
Collins appeals.  We reverse and remand for a new trial.

     On May 11, 1992, Collins was traveling with his wife and a
friend in a car on U.S. 71 near Passaic when a Highway Patrol
trooper stopped their car at about 10:50 P.M. for speeding. 
Collins' wife was driving.  Collins was asleep in the backseat. 
The trooper testified that he drove behind the car for a couple of
miles and concluded that it was traveling about 69 miles an hour in
a 55-mile-an-hour zone.

     The trooper asked Collins' wife to leave the car and to get
into his patrol car.  After discussing the matter with her for a
while in his patrol car, the trooper returned to Collins' car to
search for registration papers. As the trooper walked up to the
car, he saw what appeared to him to be the handle of a firearm
stuffed between the separated front seats.  The officer asked whose
gun it was, and Collins responded that it was his.  The firearm was
a nine-shot, .22 caliber revolver with eight live rounds in the
cylinder.

     The officer ordered Collins and the friend to get out of the
car while he searched it.  Underneath the front passenger seat, he
found a .357 magnum revolver.  He arrested Collins for carrying a
concealed weapon.

     Collins wanted the trial court to instruct the jury that to
convict Collins it had to find, among other elements, that he "was
not traveling in a continuous journey peaceably through this
state[.]"  Collins based his request on section 571.030.3 which
says, "Subdivision (1) of subsection 1 of this section does not
apply when the actor ... is traveling in a continuous journey
peaceably through this state."

     The trial court concluded that "through this state" required
that the journey begin and end outside the state, so he refused the
proffered instruction.  The trio had begun their journey earlier
that evening in Springfield and were on their way to Kansas City.

     Section 571.030.3 was enacted in 1879 under a notion, we are
told, that travelers need to carry a weapon with them for
protection against perils which typically do not face them back
home among their neighbors.  King v. State, 839 S.W.2d 709, 711
(Mo.App.1992).  The General Assembly enacted several revisions to
section 571.030 in 1993 without amending this provision.

     The trial court's conclusion that "through this state"
excluded intrastate travel is incorrect, according to the latest
pronouncement by the Supreme Court of Missouri.  In State v. Mason,
571 S.W.2d 246 (Mo. banc 1978), the majority, in a 4-3 split,
announced that the issue in determining whether the exemption
applied was not whether the journey was interstate or intrastate,
but instead whether the defendant was a traveler on a journey.  The
court said:

     Cases from other jurisdictions indicate generally that a
     traveler need not be traveling from a point outside the state
     to another point outside of it, but may be traveling on a
     journey within the state's borders and still meet the
     exemption requirements.  79 Am.Jur.2d Weapons & Firearms
     section 17, p. 22;  94 C.J.S. Weapons section 9c, p. 497.  The
     emphasis in these cases is on "journey" or "traveler" and not
     on the distance traveled.

 Id., at 248.

     The state does not contend that Collins was not a traveler on
a journey.  It argues only--incorrectly--that the traveler
exemption does not apply to intrastate journeys.  Hence, we follow
the Supreme Court's mandate and apply the exemption to Collins'
case.  The trial court erred in refusing to add the traveler
exemption to the verdict-directing instruction.

     The state does not make an issue of the speed zone violation
as having any impact on the exemption's requirement that the
traveler be moving "peaceably" through the state.  The courts have
defined "peaceably" as used in section 571.030.3 as being friendly,
without contention or strife, quiet, and orderly.  State v. Cooper,
563 S.W.2d 784, 787 (Mo.App.1978).  Surely, friendly and orderly
travel through the state would require obedience of traffic laws. 
The defendant in the Mason case, however, had also been stopped for
violating the state's speed limit.  Given the court's conclusion in
Mason, we feel compelled to conclude that the exemption applies to
a traveler [footnote 2] even when his journey is intrastate and
even when he violates the state's speed laws. Hence, we reverse the
trial court's judgment and remand for a new trial.

     All concur.

                            FOOTNOTES

FN1. The state charged him pursuant to section 571.030.1(1), RSMo
Cum.Supp.1993.  That statute said, "A person commits the crime of
unlawful use of weapons if he knowingly ... [c]arries concealed
upon or about his person ... a firearm[.]"

FN2. Because it was not at issue in this case, we do not attempt
to    define "traveling."  We do note, however, that "in its
ordinary sense it does not mean moving about from street to street
or house to house in the city or its suburbs."  87 C.J.S. Travel
(1954).