State v. Buchanan

• Decision Date: 23 May 1973
• Docket Number: No. 55573,55573
• Citation: 207 N.W.2d 784
• Parties: STATE of Iowa, Appellee, v. Robert LeRoy BUCHANAN, Appellant.
• Court: Iowa Supreme Court

Page 784

207 N.W.2d 784

STATE of Iowa, Appellee, v. Robert LeRoy BUCHANAN, Appellant.

No. 55573.

Supreme Court of Iowa.

May 23, 1973.

William L. Springer, Marshalltown, for appellant.

Richard C. Turner, Atty. Gen., Thomas D. McGrane, Asst. Atty. Gen., and Ronald M. Kayser, Marshall County Atty., for appellee.

Considered en banc.

UHLENHOPP, Justice.

This appeal involves problems which arose in the trial of a charge of going armed with intent. See Code 1973, § 695.1.

Defendant Robert LeRoy Buchanan, married and the father of two small children, had a drinking problem. He did lawn work for a living. After work on the day in question, he went to three lounges, where he consumed about three glasses of beer and seven to nine 'screwdrivers.' That evening his wife found him in one of the lounges. After a few words she went home. Defendant arrived home later and went upstairs.

Defendant's wife and children then left the home. Defendant shouted after her and she shouted back. He then chased her and she ran with the children to St. Mary's Rectory, about 200 to 300 feet away. Overtaking her, defendant struggled with her on the rectory porch. The pastor came out, eventually got the wife and children inside, and himself stayed outside trying to calm defendant down. Meantime someone notified the police.

Defendant returned home but soon came back across the street with his hand behind his back. About this time the police arrived. Defendant pulled a loaded pistol from behind his back and confronted one of the officers, who also drew his gun. The two men talked, and the officer, evidently an individual with a cool head and considerable courage, holstered his own gun and eventually persuaded defendant to hand over his pistol.

The officers arrested defendant, and the county attorney charged him with going armed with intent. A jury found him guilty and the trial court sentenced him. He appealed.

The appeal involves four main questions. First, was defendant entitled to a directed verdict? Second and third, did the trial court err in its instructions on intent and on intoxication? And fourth, did the trial court rule erroneously on objections to questions by the prosecutor during reception of evidence?

I. Directed Verdict. Defendant contends he was entitled to a directed verdict on two grounds: (a) the State introduced no proof of the specific individual or individuals against whom defendant intended to use his pistol, and (b) defendant went only a limited distance from his home.

(a) So far as material, § 695.1 of the Code provides:

Any person who with intent to use the same unlawfully against the person of another goes armed with a pistol . . . shall be guilty of a felony. . . .

This statute contains no requirement that a person going forth with a pistol have intent to shoot some particular person or class of persons. If he intends to use the weapon against the person of Someone unlawfully, the intent element of the crime is satisfied. State v. Greene, 46 N.J.Super. 120, 134 A.2d 118. Under the evidence here, the jury could certainly find that defendant intended to use the gun on someone.

(b) Defendant cites no authority in point for his contention that he could not be guilty if he was near his home, and we have found none. We do not have a case of a man defending his home against attack, and need not consider that. The distance an armed individual goes from his home might be relevant upon the intent element in a proper case, but that would be a matter for the jury. On this aspect of the case, see the facts in State v. Hunley, 167 N.W.2d 645 (Iowa).

We hold neither ground entitled defendant to a directed verdict.

II. Instruction on Intent. The trial court instructed the jury that the State had to prove (a) defendant went armed with a pistol (b) intending to use it unlawfully against the person of another. The court further instructed that if the State proved each of those propositions beyond a reasonable doubt, the jury should find defendant guilty, but if the State did not so prove one or both of the propositions, 'then you will find the defendant not guilty.'

The court explained the two propositions in succeeding instructions. Instruction 7 dealt with the second element--intent. It repeated the requirement that the State prove as a fact 'an intent existed in the mind of the defendant to use a pistol unlawfully against the person of another.' Also, 'The jury should bear in mind that the intent in question must be (1) to use the pistol unlawfully, and (2) against the person of another.' Following that language, the court said the following regarding the matter of unlawfulness:

Acts threatening violence to the person of another, coupled with the ability, intent and means to commit the threatened violence, constitutes an assault, and is unlawful. The willful pointing of a gun at another is also unlawful.

The court closed the instruction with the statement that the jury should examine the evidence closely to determine whether or not defendant had specific intent to use the pistol unlawfully against the person of another.

Defendant extracts the part we have set out regarding unlawfulness and argues that the trial court in substance directed a verdict: if the jury found defendant committed an assault or willfully pointed a gun at another, defendant would be guilty of going armed with intent.

Defendant can reach that result only be considering the part set out in isolation. But that is not the way instructions are considered. State v. Morelock, 164 N.W.2d 819 (Iowa). Taken as a whole, the instructions laid the issue before the jury fairly.

Defendant's complaint about this instruction is not well-founded.

III. Instruction of Intoxication. The trial court's instruction on intoxication was along the line of Iowa Uniform Jury Instruction 501.18, which among other things places the burden of proof on the accused to establish by a preponderance of the evidence that by reason of intoxication he was incapable of forming the requisite intent. Defendant contends before us that the trial court misdirected the jury in this respect. Defendant says the instruction shifts burden of proof on intent, and he cites Stump v. Bennett, 398 F.2d 111 (8 Cir.).

We have no occasion to deal with the merits of defendant's contention, for defendant did not preserve the claimed error.

This matter arose three times in the trial court. First, defendant requested an instruction similar to the one the court gave except that defendant did not mention burden of proof in his instruction. But defendant did not except to the court's failure to give his instruction and therefore cannot successfully assert error. State v. Gilmore, 181 N.W.2d 145 (Iowa).

Second, prior to instructing the jury, the court presented its instructions in final form to both counsel and gave them an opportunity to examine the instructions and take exceptions. With respect to the instruction in question, defense counsel pointed out the part dealing with the burden of proof and made this objection: 'We believe that is no longer the law.' This is tantamount to saying that the instruction does not state the law, which is insufficiently specific to constitute a basis for error. State v. Hraha, 193 N.W.2d 484 (Iowa).

Third, as a ground for his motion for new trial defendant enlarged on his contention that the portion of the intoxication instruction as to the burden of proof was error. This ground of the motion must stand or fall on the exception taken at trial, for if a defendant undertakes to except to instructions at trial he must rest on those exceptions. He cannot in a post-verdict motion amplify them or add new ones. It avails a trial court nothing for a defendant to save part of his exceptions for a motion for new trial, when the court can no longer change its instructions before reading them to the jury. This is the clear import of our decisions commencing with State v. Hartung, 239 Iowa 414, 30 N.W.2d 491. See State v. Youngbear, 203 N.W.2d 274 (Iowa); State v. Wright, 202 N.W.2d 72 (Iowa); State v. Hraha, 193 N.W.2d 484 (Iowa); State v. Clark, 187 N.W.2d 717 (Iowa); State v. Brandt, 182 N.W.2d 916 (Iowa); State v. Gilmore, 181 N.W.2d 145 (Iowa); State v. Brown, 172 N.W.2d 152 (Iowa).

Defendant did not preserve error.

IV. Rulings on Evidence. Defendant assigns as error a number of rulings on evidence, but he argues only one of the assignments. We have nevertheless closely examined each of the rulings, but we find no just ground for complaint. In several of them defendant's objection came too late or was otherwise insufficient. In all of them the trial court was within its discretion in ruling as it did.

The one ruling argued by defendant related to an opinion offered by the State on defendant's reputation for honesty and integrity. But defendant's objection was only that 'there has been no proper foundation laid.' This objection was inadequate, as it did not state wherein the foundation was insufficient. State v. Armstrong, 203 N.W.2d 269 (Iowa); State v. Wright, 191 N.W.2d 638 (Iowa); State v. Entsminger, 160 N.W.2d 480 (Iowa).

We cannot uphold defendant's assignments of error. The verdict and sentence must stand.

Affirmed.

All Justices concur except McCORMICK and REYNOLDSON, JJ., who concur specially, MASON, J., who concurs in divisions I and II of the concurring opinion and RAWLINGS, J., who dissents.

McCORMICK, Justice (concurring specially).

I concur in the opinion as written including the majority's finding in Division III that defendant's contentions concerning error in the intoxication instruction were not properly preserved. I believe it is appropriate, however, to express my view on the merits of those contentions.

As noted by the majority the instruction was based on Iowa Uniform Jury Instruction 501.18. It was as follows:

'INSTRUCTION NO. 8

It is the claim of the defendant that at the time and place of the alleged acts relied upon by the State...