State v. Abrams

• Decision Date: 25 September 1906
• Citation: 108 N.W. 1041,131 Iowa 479
• Parties: STATE OF IOWA v. H. H. ABRAMS, Appellant
• Court: Iowa Supreme Court

108 N.W. 1041

131 Iowa 479

STATE OF IOWA v. H. H. ABRAMS, Appellant

Supreme Court of Iowa, Des Moines

September 25, 1906

Appeal from Buchanan District Court.--HON. A. S. BLAIR, Judge.

THE defendant was convicted of having carried a concealed weapon and appeals.

Reversed.

E. R Acres, for appellant.

Chas W. Mullan, Attorney General, and Lawrence De Graff, Assistant Attorney General, for the State.

OPINION

LADD, J.

The defendant was accused, in an information filed with a justice of the peace, of being "found in the village of Quasqueton in Buchanan county, armed with one revolver, the same being a deadly weapon, with intent to use the same on the citizens of Quasqueton and keeping the same revolver concealed."He was convicted, and appealed to the district court, where the state was allowed, over objections, to file an amended information accusing him of "carrying concealed upon his person a dangerous and deadly weapon, to wit, a revolver loaded with powder and ball cartridges," in Buchanan county.

It will be observed that the effect of the amendment was more definitely to charge the offense and to extend the territory within which committed from Quasqueton to the entire county.The right to amend an information has long been recognized by this court: In State v. Merchant, 38 Iowa 375, by allowing the prosecuting witness to attach his signature; in State v. Doe, 50 Iowa 541, by making the charging part more definite in order to obviate the ruling on demurrer; in State v. Reilly, 108 Iowa 735, 78 N.W. 680, to eliminate matter which might render it open to the charge of duplicity.In the last case the filing of an amended information was approved.See, also, State v. Perry, 117 Iowa 463, 91 N.W. 765, andState v. Brown, 128 Iowa 24, 102 N.W. 799.The information is in the nature of an accusation by a party before the court, and not like an indictment, the result of the finding of facts from evidence considered by a body not present.The amendment to an information may be added by the same party making the original accusation, and there is no reason for denying any amendment"consistent with orderly conduct of the judicial business, with the public interest, and with private rights."An amendment making additional charges should not be permitted.Com. v. Rodes, 1 Dana 595.In Com. v. Williamson, 4 Gratt. 554, the court held that an information not charging a misdemeanor could not be amended.This may be so where the information is so indefinite as not to indicate the offense intended; but, when this appears, State v. Doe, supra, is authority to the contrary.The right to make the charge more definite cannot be doubted, and, where there is no doubt as to the nature of the offense, we think that the information may be so amended as to charge its commission anywhere within the jurisdiction of the court, instead of in a particular subdivision, as in a city, incorporated town, or township.This does not alter the character of the offense, but merely enlarges the scope of proof by extending the territory within which it may be shown to have been committed.Such an amendment sometimes may require a postponement of the trial, and for this reason is largely discretionary.There was no abuse of discretion in this case.

II.The offense charged is that denounced by section 4775 of the Code: "If any person carry upon his person any concealed weapon or shall willfully draw and point a pistol, revolver or gun at another, he shall be guilty of a misdemeanor, and be fined not more than one hundred dollars, or imprisoned in the county jail not more than thirty days; but this section shall not apply to police officers and other persons whose duty it is to execute process or warrants, or make arrests."The state relied upon finding a revolver in defendant's hip pocket when arrested and his admission before the justice of the peace as proof of guilt.The testimony of the justice was to the effect that he admitted carrying the weapon concealed, but insisted in connection therewith upon his right to do so and exhibited a warrant for the arrest of one Cook, issued by Squire Brooks of Buffalo township in the same county, together with a written appointment of himself as special constable to make the arrest, and that he was acting thereon when arrested by Touris.The latter testified to similar admissions and the exhibition of like proof of his authority.Harris stated that defendant said to him he always carried it (the revolver), but whether concealed was not indicated.Thus all material admissions were made in connection with a showing that the accused was within the exception of the statute permitting a person whose duty it is to execute a warrant to carry a weapon concealed, if so advised, by virtue of an appointment under section 4589 of the Code.The discovery of the revolver in his hip pocket was subsequent to the filing of the information, and, as there was no showing of when it was placed there, it cannot be inferred that it had been carried by him concealed, prior to entering the complaint.Moreover, it may have been in plain view, though lodged in the hip pocket.There was no proof of the corpus delicti aside from the admissions made by the defendant, and this was essential if these were to be treated as amounting to a confession of guilt.State v. Dubois, 54 Iowa 363, 6 N.W. 578.See cases collected in12 Cyc. 483.Section 5491 of the Code provides that: " The confession of the defendant unless made in open court will not warrant conviction unless accompanied by other proof that the offense was committed."Confessions are either judicial or extra-judicial.Judicial confessions are those made in conformity to law before a committing magistrate or in court in the course of legal proceedings.Extrajudicial confessions are those which are made by a party elsewhere than before a magistrate or in court.These, by the great weight or authority, independent of statute, must be corroborated by proof of the corpus delicti.Matthews v. State, 55 Ala. 65(28 Am. Rep. 698);State v. Lamb, 28 Mo. 218;12 Cyc. 483.

At the common law, and in many of the states, the testimony of the accused, when given on preliminary examination, is required to be taken down in writing after he has been duly cautioned, the writing read over to him, and either signed by him or at least certified by the justice as his evidence.When this has been done, what he has said, if amounting to a confession, is received as proof of guilt without other evidence of the commission of the offense.But under our statute the accused is not required to plead.The justice merely preserves minutes of the testimony to be sent to the district court for the use of the grand jury, unless by agreement of the parties the...