State v. Ware , 271 N.W.2d 485 ( 1977 )

RAWLINGS, Justice.

Defendant, Jimmie Winston Ware, was charged with carrying a concealed weapon in violation of Section 695.2, The Code 1975. Trial jury found him guilty and judgment was accordingly entered.

We now review a court of appeals decision which reversed defendant’s conviction on the ground a marshalling jury instruction given by trial court inadequately propounded the State’s burden of proof regarding defendant’s carrying of a knife with intent to use it as an offensive or dangerous weapon. See State v. Watts, 223 N.W.2d 234 (Iowa 1974).

Viewed in a light most favorable to the jury verdict this is, in brief, the factual basis upon which the presently involved charge was premised. August 4, 1975, Ware, a penitentiary inmate, was ordered to “strip” for a search. He promptly withdrew a knife from under his clothing and placed it on a table. This instrument had a dull six inch blade with three more inches of taped area. One prison official testified institution rules prohibited the carrying of knives by inmates.

Ware contends he is entitled to a reversal because of (1) the aforesaid marshalling instruction, and (2) insufficiency of evidence to support the charge made.

I. In connection with his appeal defendant has at all times appropriately conceded the first error asserted by him, supra, was not preserved for review. Consequently, it has never justified and does not now merit appellate consideration. State v. Reynolds, 250 N.W.2d 434, 441 (Iowa 1977). See also State v. Still, 244 N.W.2d 805, 807 (Iowa 1976); State v. Yates, 243 N.W.2d 645, 650 (Iowa 1976); State v. Lyles, 225 N.W.2d 124, 127 (Iowa 1975). The court of appeals erred in holding to the contrary.

II. On the other hand, Ware postulates it is bur duty to entertain his aforesaid belated assignment under the provisions of Code § 793.18, quoted in State v. Wisher, 217 N.W.2d 618, 620 (Iowa 1974). We are not so persuaded. As this court said in State v. Smith, 228 N.W.2d 111, 112 (Iowa 1975):

“Our statutory duty to review the record in a criminal case without regard to technical errors or defects does not confer upon us either the duty or authority to treat the unexcused failure to make an otherwise mandatory record regarding the admissibility of evidence or the court’s instructions as a mere technical error or defect. § 793.18, The Code; State v. Wisher, supra; State v. Galvan, 181 N.W.2d 147,149 (Iowa 1970); State v. Kramer, 252 Iowa 916, 109 N.W.2d 18 (1961); see D. Rendleman, The Scope of Review in Criminal Appeals and the Iowa Judgment on the Record Statute, 22 Drake L.Rev. 477 (1973). [emphasis supplied].

“Defendant had a fair trial. No substantial right was denied him. His failure to make a proper record regarding his present complaints must be ascribed to waiver rather than injustice. Cf. State v. Lunsford, 204 N.W.2d 613, 618-619 (Iowa 1973); State v. Kramer, supra.”

See also State v. Miller, 229 N.W.2d 762, 765 (Iowa 1975).

III. Finally, a review of the record leads us to conclude the evidence adduced in course of trial amply justified submission of this case to the jury. See State v. Overstreet, 243 N.W.2d 880, 883-884 (Iowa 1976).

We reverse the court of appeals. Defendant’s conviction and sentence are reinstated.

REVERSED.

MOORE, C. J., and LeGRAND, REES, UHLENHOPP and HARRIS, JJ., concur. McCORMICK, MASON and REYNOLD-SON, JJ., dissent.