State v. Watts, 56372

• Decision Date: 13 November 1974
• Docket Number: No. 56372,56372
• Citation: 223 N.W.2d 234
• Parties: STATE of Iowa, Appellee, v. Darrell WATTS, Appellant.
• Court: Iowa Supreme Court

Page 234

223 N.W.2d 234

STATE of Iowa, Appellee, v. Darrell WATTS, Appellant.

No. 56372.

Supreme Court of Iowa.

Nov. 13, 1974.

William R. Tysseling, Ames, for appellant.

Richard C. Turner, Atty. Gen., Darby Maria Coriden, Asst. Atty. Gen., and Stanley Simpson, County Atty., for appellee.

Submitted to MOORE, C.J., and RAWLINGS, LeGRAND, REES and McCORMICK, JJ.

REES, Justice.

Defendant was charged by county attorney's information with the crime of carrying a concealed weapon in violation of § 695.2, The Code, 1971. He was tried, convicted, sentenced, and now appeals. We reverse and remand for new trial.

On December 5, 1972 a snow removal crew reported to the Boone police department they had observed a man lying in a downtown street. The police officers investigated and found defendant lying face down on a snow-covered sidewalk. Defendant's head was cut, and he was obviously intoxicated. He was placed under arrest and taken to the Boone County hospital emergency room for treatment. The nurse on duty asked defendant to remove his coat, which he refused to do, and he was then told by the arresting officers to remove his coat, and he again refused. The police officers attempted to remove defendant's coat and had partially succeeded when they noticed a kitchen knife with a blade approximately 10 1/2 inches in length sticking in defendant's trousers pocket through a belt loop. The police removed the knife from defendant, and later at trial the officers testified defendant told them at that time he needed to carry the knife because he had spent 18 years in prison and that people were after him.

Defendant assigns two claimed errors on which he relies for reversal:

(1) Trial court erred in submitting Instruction No. 7 to the jury, which instruction purported to detail the elements of the crime with which the defendant was charged, but which defendant contends did not include a necessary condition, viz., that defendant consciously or intentionally carried the weapon with the knowledge of its real character as a weapon; and

(2) Trial court erred in failing to submit an instruction to the jury giving effect to evidence tending to prove the defendant was unable to form necessary intent due to his intoxication.

I. The State contends defendant failed to preserve the alleged errors because his objections to the instructions were to instructions the court submitted in tentative rather than final form.

The record establishes the instructions were presented to counsel but once, and that when so presented they were identified as 'proposed instructions'. The proposed instructions made available to counsel were the identical instructions submitted to the jury.

Rule 196, Rules of Civil Procedure, prior to its being amended effective July 1, 1973, provided in pertinent part:

'Before reading them to the jury, the court shall submit to counsel its instructions in their final form, noting this fact of record, and granting reasonable time for counsel to make objections after argument to the jury and before the instructions are read to the jury.'

Rule 196 is made applicable to criminal cases by § 780.35, The Code.

The instructions labeled, 'Proposed Instructions' were in truth and in fact the final instructions which were submitted to the jury. Exceptions were properly taken and the issue was properly preserved for consideration here. See State v. Horstman, 222 N.W.2d 427 (Iowa 1974).

II. Instruction No. 7 is apparently a marshalling instruction. It read:

'Before the Defendant can be found guilty of the offense charged in the Information, the State must establish by the evidence beyond a reasonable doubt each and all of the following propositions:

'1. That on or about the 5th day of December, 1972, in Boone County, the Defendant carried a knife.

'2. That the Defendant carried the knife concealed on or about his person.

'3. That the Defendant was then in a place other than his dwelling house, his place of business or on land possessed by him.

'If the State has established each of the foregoing propositions beyond a reasonable doubt, it will be your duty to find the Defendant guilty.

'If the State has failed to so establish one or more of the foregoing propositions, then you will find the Defendant not guilty.'

The foregoing instruction is virtually a verbatim recitation of Uniform Jury Instruction No. 530.8. The defendant contends the instruction should have made reference to the State's burden of proving defendant intentionally or consciously carried the knife with knowledge of its character as a weapon; that intent is an essential element of the crime of carrying a concealed weapon when the weapon is not of a type specifically enumerated in § 695.2 The Code, 1971; and that the failure to incorporate such intent in the marshalling instruction is Ipso facto reversible error.

We note Instruction No. 4 informed the jury in pertinent part:

'* * * Some weapons are dangerous because they are specifically so designed and are, per se, deadly, such as firearms, hand grenades or bombs. Other instruments, though designed for peaceful and proper purposes, may be within the category of 'dangerous weapons' if they are used or intended to be used for the purpose of bodily assault or defense, and whether or not such implements are offensive or dangerous weapons, within the meaning of the statute, depends upon the use which the carrier made or intended to make of them.

'It is for you to determine from all of the facts and circumstances disclosed by the evidence whether or not the knife in question in the case was an offensive or dangerous weapon by reason of the Defendant carrying it for use as a weapon for bodily assault or defense. The State must establish beyond a reasonable doubt that the knife in question was in fact an offensive or dangerous weapon as herein defined.'

Obviously, the question as to whether defendant carried the knife as a weapon was properly before the jury under Instruction No. 4.

It was, however, incumbent upon the trial court in instructing the jury to incorporate in the marshalling instruction (Instruction No. 7) all of the elements of the offense which it was incumbent upon the State to prove. In State v. Straw, 185 N.W.2d 812, 816 (Iowa 1971), we said:

'Where an instruction marshals the essential element of a crime and authorizes conviction if the elements listed have been proved beyond a reasonable doubt, all of the essential elements must be included in the marshalling instruction. Omission of an element even if included in another instruction is fatal.' (Emphasis added).

Section 695.2, The Code, 1971, provided:

'It shall be unlawful for any person, except as hereinafter provided, to go armed with or carry a dirk, dagger, sword, pistol, revolver, stiletto, metallic knuckles, pocket billy, sandbag, skull cracker, slug shot or another offensive or dangerous weapon, except hunting knives adapted and carried as such, concealed either on or about his person, except in his own dwelling house or place of business or other land possessed by him. No person shall carry a pistol or revolver concealed on or about his person or whether concealed or otherwise in any vehicle operated by him, except in his dwelling house or place of business or on other land possessed by him, without a permit therefor as herein provided.

'However, it shall be lawful to carry one or more unloaded pistols or revolvers for the purpose of or in connection with lawful target practice, lawful hunting, lawful sale or attempted sale, lawful exhibit or showing, or other lawful use, if such unloaded weapon or weapons are carried either (1) in the trunk compartment of a vehicle or (2) in a closed container which is too large to be effectively concealed on the person or within the clothing of an individual, and such container may...