181 Iowa 1098 | Iowa | 1917
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 rec
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 deman (Is; 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, though in its facts it is unlike the case at bar, this court said, citing State v. Schwab, 112 Iowa 666:
“ '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). 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 will*1101 reverse for rulings as to which no exceptions have been preserved, but we may and should reverse on the ground that defendant has not had a fair trial, even though no specific rulings have been properly objected to.”
It was further said in this case:
“We know of no reason why counsel in a criminal' case should not make his objections as specific and definite as is required in a civil case, in order to raise a question of law for consideration upon appeal.”
In this Barr case, it was the thought of the court in reversing the case that the defendant did not have a fair trial, in that he was forced to come to trial with new counsel without opportunity to prepare. This case suggests what must be apparent to every legal mind, that no man should be convicted of a felony or of any crime unless he has had a fair and impartial trial, such as is contemplated by the law. He has, however, a fair and impartial trial •when opportunity is given to him to object and except to what is done to his prejudice upon the trial.
It cannot be said, then, that his constitutional rights were invaded. All that can be said is that the court, in attempting to administer the law, acted erroneously. The case then may or may not be reversed for the errors committed, depending on whether or not they are prejudicial. But there is a broader principle, involving the right of defendant to have such a trial as is guaranteed to him by the Constitution. All our crimes are statutory. Therefore, one called to answer as for a violation of the statute in a criminal way, is entitled to call upon the State to make proof of all facts essential to constitute the crime charged. Until the proof is forthcoming from the State to establish all the essential elements of the crime charged against the citizen, the presumption of innocence stands between him and conviction. It is fundamental that every man is presumed to be innocent, when placed on trial, until
Section 4775rla, Code Supp., 1913, provides:
“It shall be unlawful for any person, except as hereinafter provided, to go armed with and have concealed upon his person * * * a revolver * * * or other offensive and dangerous weapons or instruments concealed upon his person.”
It will be noted that in this statute the act inhibited is not made absolutely unlawful, because the very statute itself excepts conditions upon which it may be lawful. An indictment charging merely that one went armed with, and had concealed upon his person, an offensive and dangerous weapon, which does not state that the party charged does not come within the exception, leaves the mind in doubt as to his criminality. An indictment which charges the violation of a statute must so state the facts that, upon demurrer, the facts being admitted, an intelligent judgment could be pronounced by the court. If an indictment is drawn under a statute which, in itself, excepts some persons from criminality for the act, how can it be charged
“The State had the burden * * * of showing by the evidence beyond a reasonable doubt that the defendant did not at the time have a permit to go armed.”
In the case before us, while there was evidence from which the jury might find that the defendant was carrying a concealed weapon, there was no evidence and no attempt to prove that the defendant did not come within the ex-V ception. Until there was proof that he was outside the protection of the exception, the State did not prove one of the essential elements of the offense. It is right for us to say that the attorneys appearing in this court did not try the case below.
For the reasons above suggested, the cause is — Reversed- and remanded.