Battani v. Grund, 48132

• Decision Date: 16 December 1952
• Docket Number: No. 48132,48132
• Citation: 56 N.W.2d 166,244 Iowa 623
• Parties: BATTANI v. GRUND, Judge.
• Court: Iowa Supreme Court

Page 166

56 N.W.2d 166

244 Iowa 623

BATTANI v. GRUND, Judge.

No. 48132.

Supreme Court of Iowa.

Dec. 16, 1952.

Rehearing Denied March 13, 1953.

Royal & Royal, of Des Moines, for petitioner.

Clyde E. Herring, County Attorney, and John E. Sarbaugh, Assistant County Attorney, of Des Moines, for respondent.

THOMPSON, Justice.

On March 13, 1952, an application for a rule to show cause was filed in the municipal court of the City of Des Moines, of which the respondent was the presiding judge. It was alleged the petitioner, Sasto Battani, had illegally resisted an order or process of the court and was guilty of contempt as defined in Chapter 665 of the Code of 1950, I.C.A. We assume the specific section which it was claimed was violated is section 665.2, paragraph 3, which defines as a contempt, 'Illegal resistance to any order or process made or issued by it ('it' being a 'court' as defined by section 665.1).'

The rule issued as prayed, and on April 1, 1952, the petitioner herein, who was the alleged contemnor, filed his resistance in two parts. Part I pleaded there was no contempt because 'the search warrant upon which the contempt charge was based was invalid and of no force and effect and all acts thereunder were illegal and void because said search warrant was based on an information which was not on file as required by law at the time said search warrant was allegedly issued.'

Part II raised a fact question, denying that the alleged contemnor committed the acts set out in the application for the rule.

Upon these issues the matter went to trial before the respondent on April 1, 1952 and on April 3, 1952, he made his findings of fact and conclusions of law, determining Battani was guilty of contempt. On April 11 following respondent sentenced Battani to six months confinement in the Polk county jail, and to pay costs; and to review this judgment petitioner brings certiorari. He presents four propositions relied upon for sustaining the writ. We shall discuss them in order, with a recital of the material facts bearing upon each ground under consideration.

I. The first proposition relied upon by petitioner is the same pleaded in Part I of his resistance and set out above. It constitutes what is perhaps his major challenge to the proceeding. As a preliminary to determining it some reference should be made to the material facts which bear upon the question of the filing of the information.

On February 28, 1952, one B. A. Grossnickle, a constable of Allen township in Polk county, swore to an information for a search warrant before the respondent. It is not contended there was any irregularity in the information or in the finding of probable cause. A search warrant was issued by respondent for the premises occupied by the petitioner, on the same date. Grossnickle took both the warrant and the information away with him. He did not serve the search warrant issued on February 28th, but on March 7th returned to respondent, again presented the information, and received another warrant, which he executed on March 9th. It was for alleged resistance to the service of this second process that petitioner was cited and adjudged guilty of contempt.

Section 751.4 of the Code of 1950, I.C.A., so far as material to our inquiry, is here set out:

'Any credible resident of this state may make application for the issuance of a search warrant by filing before any magistrate, except a judge of the supreme court, a written information, supported by his oath or affirmation, and alleging therein the existence of any ground or grounds specified in this chapter as ground for the issuance of a search warrant and that he believes and has substantial reason to believe that said ground or grounds exist in fact.'

It is petitioner's contention the information was not filed before the issuance of the search warrant, that the warrant was therefore void, and so any resistance to it was not a contempt. If all of these matters appear, he is correct. But we think that whether the information was actually filed--a mixed question of law and of fact--must be determined against the petitioner; and if this were not so, we have held that the failure to file the information is a mere irregularity, which does not make the warrant void, and does not protect one who resists its execution. In Burtch v. Zeuch, 200 Iowa 49, 56, 202 N.W. 542, 544, 39 A.L.R. 1349, it was likewise claimed that the information for the search warrant was not filed before the warrant was issued. Other questions were raised. After holding there was sufficient showing of probable cause, this court said of the issue of failure to file and the other matters urged by petitioner therein:

'At most these objections constitute an attack upon the regularity of the information and warrant. It is elementary the disobedience of an order or process made by a court within its jurisdiction and power is a contempt, although the order or process may be irregular or irregularly issued. * * * The information and search warrant were prima facie regular and valid.'

This is a direct holding that failure to file the information is, at most, an irregularity and does not make the search warrant issued upon it void.

Also the respondent found there had been a sufficient filing. Grossnickle, as a witness, testified he had the information in his possession from the time the judge (respondent) signed it until he filed it with the clerk of the municipal court on March 10th, the day after the warrant was served. He said: 'I didn't leave it with the judge. I had orders from the judge to keep it.' Respondent, during the course of the contempt hearing, evidenced his intent in the matter by saying: 'The minute it was signed by the court it was filed with the court, although the court did not have possession of it.' And again: 'At the same time it was practically filed by the Court, although the Court turned it back to Mr. Grossnickle.' In his findings of fact and conclusions of law, after refering to State v. Doe, 227 Iowa 1215, 1218, 290 N.W. 518, 521 respondent said:

'It has been a practice with the courts to sign an information and search warrant and allow the officer to hold the same without filing with the clerk. I presume that this practice is to insure that there will be no leaks.'

In State v. Doe, supra, to which respondent referred, we held that a search warrant might be legally issued before the filing of the information with the clerk of the court; that it is sufficient the information be filed before a magistrate, and 'such filing would be sufficient whether or not marked filed.' (Italics ours.)

At common law and under the constitution of the United States, a search warrant may be issued upon probable cause shown by oath or affirmation. Our statute, section 751.4, supra, goes a step farther and requires that a written information must be filed. We think the emphasis is upon the writing rather than upon the filing. It was the evident primary purpose of the legislature to insure that the magistrate should have before him a writing, showing under oath that there was probable cause for the issuance of the process. A 'filing' is a most informal procedure. The paper 'filed' need not be so stamped. State v. Doe, supra. Nor need it be retained by the magistrate; it is sufficient if it be presented to him for the purpose of filing and he may immediately return it to the party who has delivered it to him, without affecting its validity. This is true, even though it be a misfeasance on the part of the magistrate to permit the paper to leave his possession (although we do not hold that it was such in this case). If the search warrant is once legally issued surely it cannot be affected by what happens to the information afterward so far as the validity of the warrant is concerned.

The petitioner relies heavily upon Thompson v. State, 190 Ind. 363, 130 N.E. 412. This case supports his position, but we think it far overborne by authority to the contrary, and that any weight it might have is diminished to the vanishing point by later cases in the Indiana court itself. Thus in Mowlan v. State, 197 Ind. 517, 151 N.E. 416, 417, a case in which the affidavit (or information) was removed from the office of the magistrate, it was said:

'Same should have been kept on file by him, but this irregularity did not make the search warrant and search thereunder invalid. It is not claimed by appellant that he was harmed by the removal of the affidavit from the office of the justice of the peace.' Italics ours.)

Still later, in Goodman v. State, 201 Ind. 189, 165 N.E. 755, 756, the same court was again confronted with a claim that the affidavit had not been filed. In that case the affidavit had been placed in the hands of the justice of the peace, marked 'filed,' and a search warrant had been issued. The justice permitted the police officer to take the affidavit away with him. The situation is closely parallel to the one we now have before us. It is true that in the instant case the respondent did not mark the information 'filed,' but we have held the filing mark or stamp is not necessary; there may be a filing without it, as we have pointed out above. The Indiana court in the Goodman case upheld the validity of the search, pointing out that the affidavit was filed when it was delivered to the proper officer for that purpose; that there was no claim the appellant had...