Blodgett v. Clarke

• Decision Date: 28 September 1916
• Docket Number: No. 31377.,31377.
• Citation: 177 Iowa 575,159 N.W. 243
• Parties: BLODGETT v. CLARKE ET AL.
• Court: Iowa Supreme Court

177 Iowa 575

159 N.W. 243

BLODGETT

v.CLARKE ET AL.

No. 31377.^a1

Supreme Court of Iowa.

Sept. 28, 1916.

Appeal from District Court, Polk County; Hubert Utterback, Judge.

The plaintiff alleged in his petition that the defendants constituted the executive council, W. S. Allen being secretary of state; that at the primary election on June 5, 1915, the electors voted to nominate four candidates for the office of judge of the Supreme Court; that the returns disclosed that the plaintiff received 14 votes more than any person voted for as candidate other than H. E. Deemer, W. D. Evans, and Wm. Theophilus; that on July 13, 1916, plaintiff demanded in writing that the executive council certify to the number of votes received by plaintiff for said office, and that a certificate of nomination be issued by the secretary of state to the plaintiff as one of the candidates duly nominated; that the defendants refused said certificates; and he prayed that a peremptory order of mandamus be issued commanding defendants forthwith to determine what person was selected as the fourth candidate and to issue him a certificate of nomination accordingly. By way of amendment to the petition the plaintiff alleged that he is a qualified elector, and has never been convicted of an infamous crime, but that by virtue of the void judgment returned by the court without jurisdiction plaintiff was illegally imprisoned in the penitentiaries of Iowa for three years and nine months, thereby serving an unlawful sentence of five years; “that plaintiff was tried and acquitted upon an indictment charging him ‘with intent to defraud’ by one certain use of one certain written instrument; that thereafter the same act of his mind (his one intention) was again charged to have been an ‘intent to defraud,’ and, by the fraudulent act of the presiding judge at the second trial of the one question of intent (the only question of fact litigated in both trials) the second jury was deceived by being deprived of an opportunity to examine certain letters that the honorable district court judge, William D. Evans, as presiding judge when plaintiff was acquitted, had decided to be competent, relevant, and material evidence upon the question of intent, and the jury rendered a verdict of guilty in accordance with the partial evidence by which they were by the oaths bound to be controlled; that the making of the written instrument and the uttering of it were each done by the plaintiff with the sole intention to use the written instrument as it was used, and which use was, by the first jury, legally and finally determined to have been a legal use of it; that the making and use of the written instrument was one inseparable indivisible transaction, determined, by the first jury, to have been no crime; that the court did not have jurisdiction to try the same question of fact after the former acquittal, and the Honorable S. M. Weaver so decided in State v. Blodgett.” The...