Ashby v. Haugh

• Decision Date: 11 July 1967
• Docket Number: No. 52526,52526
• Citation: 260 Iowa 1047,152 N.W.2d 228
• Parties: Dennis Steven ASHBY, Appellee, v. C. H. HAUGH, Warden, Iowa State Men's Reformatory, Anamosa, Appellant.
• Court: Iowa Supreme Court

Page 228

152 N.W.2d 228

260 Iowa 1047

Dennis Steven ASHBY, Appellee, v. C. H. HAUGH, Warden, Iowa State Men's Reformatory, Anamosa, Appellant.

No. 52526.

Supreme Court of Iowa.

July 11, 1967.

W. W. Reynoldson, Osceola, and Robert H. Story, Jones County Atty., Anamosa, for appellant.

Robert E. Mannheimer, Norman G. Jesse and Tom W. George, Des Moines, for appellee.

GARFIELD, Chief Justice.

This is a habeas corpus action against the warden of the men's state reformatory where it is alleged plaintiff is illegally restrained. Following a hearing, the district court ruled plaintiff should have been referred to the juvenile court of Ringgold county and ordered him remanded to such court within one week for further proceedings. Defendant has appealed. We reverse the decision.

On the night of October 7, 1965 an armed robbery was committed upon an attendant at a gasoline filling station in Mt. Ayr, Ringgold county. About an hour later plaintiff and three companions were apprehended and taken into custody in northern Missouri, approximately 50 miles south of Mt. Ayr. Plaintiff and one of the other three had entered the station and plaintiff, while masked, held the gun on the victim. Upon being apprehended and at all times subsequent thereto until about two weeks after he was admitted to the reformatory plaintiff gave his age as 19.

After plaintiff was sentenced to the reformatory on his plea of guilty to robbery with aggravation in violation of section 711.2 Code 1962 it developed he was in fact only 17. This action followed.

Relief was asked on two grounds. First, that since plaintiff was in fact under 18 it was mandatory under what is now section 232.61 Code 1966 that he be referred to the juvenile court of Ringgold county before the district court could sentence him under the county attorney's information filed against him therein. Second, that plaintiff was denied effective representation by counsel at the preliminary hearing before the justice of the peace (which hearing was waived); plaintiff was interrogated at length by the county attorney when plaintiff was without counsel, in violation of his constitutional right against self incrimination and to due process of law; and the whole atmosphere surrounding plaintiff's conviction and sentencing was such that he was denied due process.

The trial court's ruling is based solely on the first of these two grounds. The second ground on which the action is based is ignored except as stated in division III hereof. No attempt was made to have the court's findings enlarged or amended under Rule 179 Rules of Civil Procedure to include reference to the second ground of the action to which virtually all the evidence was directed.

I. Two procedural questions are presented. Copy of the mittimus (legal process) by virtue of which plaintiff was restrained in the reformatory was not annexed to the petition nor was satisfactory reason given for its absence, as required by Code sections 663.1, 663.2. Based on this omission defendant unsuccessfully moved to dismiss the petition at the outset of the hearing and again at the close of plaintiff's evidence and the evidence as a whole.

We have held the requirements of section 663.1 as to what the petition must contain are mandatory and failure of compliance is ground for dismissal of the action. Farrant v. Bennett, 255 Iowa 704, 708, 123 N.W.2d 888, 891, and citations, cert. den. 375 U.S. 977, 84 S.Ct. 498, 11 L.Ed.2d 422.

However, since the mittimus was received in evidence at the commencement of the hearing and plaintiff, by amendment to the petition dictated into the record at the close of his evidence, tendered the exhibit as part of the petition, we do not reverse because of this omission from the petition.

II. More serious is the fact plaintiff had appealed to this court from the judgment of conviction in the district court and the appeal was never dismissed. So far as the record before us shows, it was still pending at the time of the hearing on plaintiff's petition although plaintiff's attorneys said it was their intention to abandon it.

'* * * a court has no power to grant a writ of habeas corpus pending an appeal to another court from a conviction in a criminal prosecution.' 25 Am.Jur., Habeas Corpus, section 108, p. 223.

To like effect is 39 C.J.S. Habeas Corpus § 53, p. 596, which states the rule is of wide application and there is no conflict of authorities on it.

Peff v. Doolittle, 235 Iowa 443, 447, 15 N.W.2d 913, 915, quotes both 25 Am.Jur. and 39 C.J.S., supra, with approval and cites many decisions supporting the rule. See also McFarland v. State, 172 Neb. 251, 109 N.W.2d 397, 402 and citations; Rhodes v. Sigler, 172 Neb. 439, 109 N.W.2d 731, 733; France v. Superior Court, 201 Cal. 122, 255 P. 815, 52 A.L.R. 869 and Anno. 876.

Although defendant's motion to dismiss on this ground was good, we prefer not to rest our decision on this somewhat technical ground.

III. As stated, sole basis of the relief granted was the trial court's opinion that what is now section 232.61 Code 1966 is mandatory and required the justice of the peace to initially refer plaintiff to the juvenile court of Ringgold county; since this was not done his detention in the reformatory was illegal. Other issues were ignored except as stated in the next paragraph hereof. The ruling (filed the day the evidence was concluded and the case argued) makes no mention of section 232.62, infra.

The ruling states four times, in effect, that the fact plaintiff was not treated as a juvenile was of his own making in wilfully falsifying his age and that his true age was not discovered until after he was sentenced in district court. Also that 'the juvenile court may choose to review the other matters raised in this action.' This must refer to defendant's contention that in consciously misrepresenting his age plaintiff waived any alleged right to have his case initially considered by the juvenile court and plaintiff's claim he was denied effective representation of counsel and in other ways deprived of due process.

We know of no authority, statutory or otherwise, to support the view that the juvenile court could properly and effectively review such other matters.

The court's decision is contrary to our holding in State v. Stueve, Iowa, 150 N.W.2d 597, filed about nine months after the decision here. It must be assumed the decision would not have been rendered if our Stueve opinion had been filed before the trial court acted.

Although the cited case is conclusive against plaintiff on the first ground of his action, it is perhaps well to quote sections 232.61 and 232.62 Code 1966. The former provides:

'Mandatory transfer from justice court. Any child taken before any justice of the peace or police court charged with a public offense shall, together with the case, be at once transferred by said court to the juvenile court.'

Section 232.62 states:

'Concurrent jurisdiction of criminal offenses. The criminal court shall have concurrent jurisdiction with the juvenile court over children less than eighteen years of age who commit a criminal offense.'

Although 17-year-old Stueve was not taken before a justice of the peace as plaintiff Ashby was here, our Stueve opinion fully disposes of the contention made here that section 232.61 places initial jurisdiction of any juvenile offender exclusively in the juvenile court. After summarizing this statute, we hold 'this does not mean the juvenile court must try the case, nor that this procedure is exclusive.' The cited opinion then refers to section 232.3 and, particularly, to 232.17, quoted in full in the dissenting opinion in Stueve. Our opinion proceeds:

'Appellant contends these sections disclose an intent that all juveniles under the age of 18 years must be first sent to juvenile court, and it is then to decide in its discretion whether it will exercise juvenile jurisdiction or send the child and the case to the district court for criminal action. * * * we think appellant claims too much for these procedural sections and fails to give the expression 'concurrent jurisdiction' in section 232.62 the clear and judicially-expressed meaning of the term as used therein.' (p. 601 of 150 N.W.2d)

The argument for plaintiff here closely parallels the views expressed in the Stueve dissent and takes issue with the conclusion reached in the opinion of November 2, 1965 of the Iowa Attorney General. That opinion points out that if the 'concurrent jurisdiction' referred to in 232.62 may be exercised only after the juvenile court determines the child shall be referred to the criminal court for prosecution then the section was totally unnecessary because section 232.17 contains such a provision.

Plaintiff asserts in argument and we agree the legislature could not have intended the mere circumstance of whether a child is brought before a justice of the peace should determine whether he is to be treated as a juvenile in further proceedings.

We conclude the fact this plaintiff was taken before the J.P. initially and Stueve was not affords insufficient basis for distinguishing the Stueve opinion as a controlling precedent here. We reiterate our holding there that section 232.62 means what it says.

IV. As previously indicated, the trial court found as facts plaintiff consistently and wilfully falsified his age to the officials and led them to believe he was 19 when he was in fact 17 and, prior to sentencing, the district court was not aware he was under 18. There is ample evidence to support these findings and they are therefore binding on us. Birk v. Bennett, 258 Iowa 1016, 141 N.W.2d 576, 577--578 (Thornton, J.); Scalf v. Bennett, Iowa, 147 N.W.2d 860, 863; Hansen v. Haugh, Iowa, 149 N.W.2d 169, 171--172, and citations in these opinions.

Defendant contended in the trial court and argues here that by misrepresenting his age plaintiff waived any alleged right to have his case initially determined by the juvenile...