Summary
discussing Iowa Code section 13190 which was an earlier counterpart of section 728.4
Summary of this case from State v. RobinsonOpinion
No. 45264.
December 31, 1940.
CRIMINAL LAW: County attorney's information — failure to charge 1 offense — guilty plea by defendant — judgment set aside on appeal. Under § 14010, C., '39, it is the duty of the supreme court, on appeals in criminal cases, to examine the record and enter such judgment as the law demands. So, a judgment entered upon a plea of guilty to a county attorney's information charging possession of obscene pictures must be set aside and the accused discharged when on appeal it appears that the information did not charge an offense because the information did not allege the statutory element of the crime that possession was with intent to sell, loan, or give away obscene pictures.
CRIMINAL LAW: Plea of guilty — what admitted. A plea of guilty 2 admits only the act charged, but if no offense is charged the plea does not confess a crime.
Appeal from Dubuque District Court. — HUGH STUART, Judge.
Defendant was charged in a county attorney's information with having possession of obscene pictures in violation of section 13190, 1939 Code. Defendant appealed from a judgment entered against him after his plea of guilty. — Reversed and remanded.
John M. Rankin, Attorney General, Jens Grothe, Assistant Attorney General, and John L. Duffy, County Attorney, for appellee.
Kenline, Roedell Hoffmann and T.S. Stevens, for appellant.
Defendant pleaded guilty to the charge in the information on March 1, 1940. Prior to the announcement of the judgment by the court on March 2d, the written judgment of the court had been entered in the record book as contemplated by section 10830. A few minutes after the judgment was spread on the record book, the judgment was pronounced by the court. Defendant then attempted to withdraw his plea but the court said that the withdrawal was too late. Defendant then filed a demurrer to the information which alleged that chapter 177 of the Twenty-first General Assembly, of which section 13190 is a part, was unconstitutional. Though the court had refused to permit defendant to withdraw his plea, the court permitted a hearing on the demurrer after which it was overruled. Defendant then filed a motion in arrest of judgment which contained substantially the same allegations as the demurrer. This motion was overruled.
It is unnecessary to pass on the rulings of the trial court as defendant's proposition that the information did not charge an offense must be sustained.
[1] It is our duty, under section 14010, to examine the record and to enter such judgment on the record as the law demands.
The material portion of section 13190 reads:
"13190 Obscene literature — articles for immoral use. Whoever sells, or offers for sale, or gives away, or has in his possession with intent to sell, loan, or give away any obscene, lewd, indecent, lascivious, or filthy book, pamphlet, paper, drawing, lithograph, engraving, picture, photograph, writing, card, postal card, model, cast, * * * shall be guilty of a misdemeanor and be fined not more than one thousand nor less than fifty dollars, or be imprisoned in the county jail not more than one year, or both."
The information accused defendant "of the possession of obscene pictures and charges that the said Oliver G. Schrup in the County and State aforesaid did have in his possession obscene, lewd, indecent, lascivious and filthy pictures, contrary to and in violation of section 13190 of the Code of Iowa."
[2] Defendant's plea of guilty admits only the act charged in the information and as it does not charge an offense, defendant did not confess a crime by the plea.
The legislature was not concerned about the mere possession of obscene pictures. The purpose of the act is to guard the public morals, to discourage the dissemination of the pictures which tend to corrupt and debauch the morals of those whose minds are susceptible to such lecherous influences. Hence, the requirement that to constitute a crime, the possession must be with intent to sell, loan or give away the obscene pictures.
As the information does not charge an offense, the case is remanded with directions to set aside the judgment, dismiss the information, and discharge the defendant. — Reversed and remanded.
RICHARDS, C.J., and BLISS, MILLER, MITCHELL, HAMILTON, and OLIVER, JJ., concur.