dissenting.
I respectfully dissent and would grant defendant a new trial on the ground that Instruction No. 6 failed to follow the substantive law.
Instruction No. 5, the verdict directing instruction required the jury to make four factual findings: (1) on January 2, 1981, defendant carried upon or about his person a firearm; (2) it was not discernible by ordinary observation; (3) defendant intended to carry it; and (4) defendant was not lawfully entitled to an acquittal as defined in Instruction No. 6. Defendant admitted the first three elements of the instruction.
Instruction No. 6, as quoted in the majority opinion, informs the jury that they must consider whether defendant was lawfully entitled to carry the weapon at the location of the offense charged. The instruction states further and the majority opinion assumes that a person whose bonafide duty is to aid in conserving the peace, may carry a concealed weapon only in the municipality in which he is so empowered. Since the evidence was undisputed that defendant was not in the city of Wellston when charged, there was no way that the jury could have acquitted defendant based on Instruction No. 6. Read together, Instructions 5 and 6 mandated the jury to find defendant guilty and denied him a defense. In fact it holds the defendant was guilty as a matter of law.
The majority opinion concludes that a mayor of a third class city was entitled to immunity within the city of Wellston under § 571.115 as a person having a bonafide duty to aid in conserving the peace.1 Although I agree with that conclusion I cannot agree with the jurisdictional limitation placed upon defendant in Instruction No. 6.
In State v. Owen, 258 S.W.2d 662 (Mo.1953), the issue before the court was whether the immunity under the predecessor to § 571.115 applies “when such persons are *381not acting in the line of their official duty and are outside the geographical boundaries of the territory for which they were commissioned and in which they could claim any authority or jurisdiction as an officer.” Id. at 663. There was no dispute in Owen that the defendant was not an official duty.
Owen is clearly no authority for the broad statement in Instruction No. 6 that in any situation, a police officer, sheriff or other person whose bonafide duty is to aid in conserving the peace cannot carry a concealed weapon outside of the municipality in which he is so empowered. Instruction No. 6 would bar police officers on duty from entering other municipalities with concealed weapons. Not only is this clearly not the intent of the legislature, it is contrary to the statement in Owen that “when in another county upon official business, which originates in the county of his election or appointment, a sheriff or his deputy clearly is entitled to the immunity of Section 564.610 Pater § 571.115].”
The majority opinion attempts to distinguish sheriffs from mayors on the basis that the ordinary duty of a sheriff would require the use of a weapon. This distinction is not supported by the clear language of § 571.115 and is not consistent with Owen. The statute defining the crime and excluding certain categories of persons makes no mention of how, when or where those persons can carry a concealed weapon. It makes no distinction between any of the categories. Owen holds that a deputy sheriff is not an immune person when outside of his county of authority on strictly personal business. Had the deputy contended that he was on official business, and the state had denied it, the dispute would have raised an issue of fact for the jury. This defense was offered by appellant. Owen did not require the deputy sheriff to be on official business requiring the use of a weapon in order to justify immunity. Rather, Owen required that the official business originate in the county of authority and that the deputy sheriff be engaged on official business. It would be for the legislature and not this court to make a distinction in the categories defined by the statute. In this respect, the statute has been repealed and a new statute, § 571.030 RSMo.Supp.1982, effective August 1, 1981 enacted.2 The may- or of a third class city is no longer immune under the new statute.
The focus then, should have been on whether, at the time of his arrest, defendant was on official business. The jury should have been instructed under Owen, that a person whose bonafide duty is to aid in conserving the peace may only carry a concealed weapon in the municipality in which he is so empowered, unless he was on official business. There was enough evidence here that defendant was on city business to justify the instruction. Defendant testified that he was issued the city weapon before he left Wellston; that it was justified and necessary because of threats he had received; that he went to Jefferson City to retrieve a city owned car, attempted to see a state legislator about city business, and was returning the vehicle to the city when he was stopped. It is conceivable that the mayor’s further performance of duty within the city would be promoted by use of the retrieved vehicle after its return to the city. It was for the jury to determine whether defendant was, as the mayor of the city of Wellston, on official business at the time and place of his arrest.
An instruction must precisely follow the substantive law. State v. Harris, 636 S.W.2d 403, 406 (Mo.App.1982). As Instruction No. 6 clearly misstated the law under Owen, I conclude that defendant should receive a new trial and must dissent.
. The parties tried the case on this premise and Instruction No. 6 assumes this to be the law.
. See majority opinion Footnote 4.