State v. Burns, 31890

• Court: United States State Supreme Court of Iowa
• Writing for the Court: GAYNOR, C. J.
• Citation: 165 N.W. 346,181 Iowa 1098
• Parties: STATE OF IOWA, Appellee, v. CURTIS BURNS, Appellant
• Docket Number: 31890
• Decision Date: 10 December 1917

165 N.W. 346

181 Iowa 1098

STATE OF IOWA, Appellee,
v.
CURTIS BURNS, Appellant

No. 31890

Supreme Court of Iowa, Des Moines

December 10, 1917

Appeal from Fayette District Court.--A. N. HOBSON, Judge.

DEFENDANT was indicted on the charge of carrying concealed weapons, convicted, and appeals.--Reversed and remanded.

Reversed and remanded.

Voris & Haas, for appellant.

H. M. Havner, Attorney General, H H. Carter, Assistant Attorney General, and James D. Cooney, for appellee.

GAYNOR, C. J. WEAVER, PRESTON and STEVENS, JJ., concur.

OPINION [165 N.W. 347]

[181 Iowa 1099] GAYNOR, C. J.

On the 23d day of January, 1917, the grand jury of Fayette County returned against the defendant the following indictment:

That the defendant, Curtis Burns, "at and within said county, on or about the 16th day of December, 1916, did go armed with, and have concealed upon his person, a revolver, the same being an offensive and dangerous weapon; he, the said Curtis Burns, being then and there a person not permitted to carry offensive and dangerous weapons concealed upon his person."

On this indictment the defendant was arraigned, and pleaded not guilty, was tried to a jury, and convicted. Judgment being entered upon the verdict, he appeals. The record does not disclose that any objections were made by the defendant to anything that happened or was done upon the trial. No exceptions were preserved to rulings made by the court, and no exceptions taken to the instructions or to the final judgment entered in the cause.

There is but one contention made by defendant that we may consider, to wit: Considering the evidence in all its fullness, and assuming the testimony offered by the State to be absolutely true, does it establish the offense charged against the defendant? We will consider no other, in the absence of objections and exceptions preserved in the record. [181 Iowa 1100] If the evidence for the State, considered in its most favorable light, fails to establish the ultimate fact upon which the verdict rests, then the State has failed to involve the defendant in criminality for which he should be called upon to suffer the penalty of the law. Unless there be a showing of error committed in the making of the record prejudicial to the defendant's rights, or the whole record shows that the defendant has not had a fair and impartial trial, such as our Constitution guarantees, we do not ordinarily interfere in criminal cases.

Section 5462 of the Code of 1897 provides:

"If the appeal is taken by the defendant, the Supreme Court must examine the record, without regard to technical errors or defects which do not affect the substantial rights of the parties, and render such judgment on the record as the law demands; it may affirm, reverse or modify the judgment, or render such judgment as the district court should have done, or order a new trial, or reduce the punishment, but cannot increase it."

In State v. Barr, 123 Iowa 139, 98 N.W. 595, though in its facts it is unlike the case at bar, this court said, citing State v. Schwab, 112 Iowa 666, 84 N.W. 944:

"'Certainly a criminal defendant may waive error on appeal. He does so in every instance where an exception is not taken below.' But on the other hand, this court is required by the statute to examine the record in criminal cases without regard to technical errors or defects which do not affect the substantial rights of the parties, and render such judgment on the appeal as the law demands, (citing above statute and State v. Nine, 105 Iowa 131, 136, 74 N.W. 945). And we can and should reverse a criminal case where it appears on the record that defendant has not had a fair trial, even though no specific error of law in the rulings of the court has been properly preserved. We do not wish to be understood as holding that even in a criminal case we...