State v. Cochran

• Decision Date: 16 May 1917
• Docket Number: No. 31073.,31073.
• Parties: STATE v. COCHRAN.
• Court: Iowa Supreme Court

179 Iowa 1304

162 N.W. 755

STATE

v.COCHRAN.

No. 31073.

Supreme Court of Iowa.

May 16, 1917.

Appeal from District Court, Linn County; Milo P. Smith, Judge.

Defendant was convicted of the crime of being armed with and having a revolver concealed upon his person and was sentenced to an indeterminate term in the penitentiary at Ft. Madison. Reversed.Redmond & Stewart, of Cedar Rapids, and W. R. Watsabaugh, of Cedar Point, for appellant.

George Cosson, Atty. Gen., and A. B. Clark and G. P. Linville, both of Cedar Rapids, for the State.

STEVENS, J.

I. The indictment charged the defendant with the crime of being armed with and having a revolver concealed upon his person, which indictment, omitting the formal parts, is as follows:

“The said Ulysses Cochran, on or about the 25th day of July, A. D. 1915, in the county aforesaid, unlawfully and feloniously did go armed with and have concealed upon his person, without a lawful permit therefor, a certain dangerous weapon, to wit, a revolver. * * *”

The defendant demurred to the indictment, which demurrer was by the court overruled, and, upon trial, the defendant was convicted and sentenced as stated above.

The statute upon which this prosecution is based is section 4775--1a of the Supplement to the Code of 1913, and, so far as material to the discussion of this question, is as follows:

“It shall be unlawful for any person, except as hereinafter provided, to go armed with and have concealed upon his person a dirk * * * or other offensive and dangerous weapons or instruments concealed upon his person; provided that no person under fourteen years of age shall be allowed to carry firearms of any description.”

[1] Defendant contends that the indictment is fatally defective because it failed to allege that defendant was not a “wholesale dealer or jobber.” The so-called exception, which it is claimed should have been negatived by the allegations of the indictment, is contained in section 4775--12a and is as follows:

“This act shall not affect in any respect wholesale dealers or jobbers.”

Counsel assume that the effect of the latter section of the statute is to except the class designated therein wholly from the operation of section 4775--1a, supra. This construction is not warranted when the several sections of the statute relating to the subject of carrying and selling dangerous weaponsare construed together. There could be no purpose on the part of the Legislature in exempting wholesale dealers and jobbers from the statute prohibiting all other classes of citizens from being armed with, or having concealed upon their person, a dangerous weapon without first obtaining permission from some one of the officers authorized by law to grant same. The above statute not only prohibits all persons from being armed with and having concealed upon their person dangerous weapons, but section 4775 --9a prohibits dealers from “selling, keeping for sale or giving away to any person any revolver, pistol, pocket billy or other weapon of a like character which can be concealed on the person” without first procuring a permit from an official having authority to issue same. The section following prescribes the duties of the holder of a permit to sell and the penalty for the violation of the provisions of section 4775--9a.

The evident purpose of the Legislature in enacting section 4775--12a was to exempt wholesale dealers and jobbers from the provision of the statute prohibiting the sale of dangerous weapons without having first procured a permit to sell the same, but not to exempt them from the operation of the statute prohibiting the carrying of dangerous weapons. It is therefore clear that no exception was created by the statute which it was necessary for the state to negative in the indictment, and the demurrer was properly overruled.

[2] II. The county recorder was called as a witness by the state, and produced a book kept by him and known as the “Dangerous Weapon Record” of Linn county. He testified that no report of the issuance of a permit to the defendant to go armed with a dangerous weapon had been filed in his office, and that the record which was admitted in evidence contained no entry showing the issuance of any such permit by any...