Hottle v. District Court in and for Clinton County

• Decision Date: 21 September 1943
• Docket Number: 46289.
• Citation: 11 N.W.2d 30,233 Iowa 904
• Parties: HOTTLE v. DISTRICT COURT IN AND FOR CLINTON COUNTY et al.
• Court: Iowa Supreme Court

11 N.W.2d 30

233 Iowa 904

HOTTLE v. DISTRICT COURT IN AND FOR CLINTON COUNTY et al.

No. 46289.

Supreme Court of Iowa

September 21, 1943

Smith, Swift & Maloney and G. W. Vander Vennet all of Davenport, for petitioner.

John M. Rankin, Atty. Gen., Don Hise, Asst. Atty. Gen., and Carroll Johnson, Co. Atty., of Clinton, for respondent.

MULRONEY Chief Justice.

The rulings of the trial court upon three motions to dismiss indictments which are brought here for review in this action in certiorari, present the following question under section 14024, Code of 1939: Should an indictment against a defendant be dismissed because defendant was not brought to trial at the next regular term of court even though it is shown that the defendant has been, since said indictment, and is now, in the state penitentiary serving a sentence for another crime? The trial court held it should not and overruled the motions to dismiss the indictments. This is a case of first impression in Iowa, though the question has been frequently decided by the courts of other states.

I. It is first argued that because the defendant has never been arrested upon the warrant issued under the indictment he cannot, under the doctrine of State v. Judkins 200 Iowa 1234, 206 N.W. 119, move to dismiss the indictment as the court does not obtain any jurisdiction until such arrest.

Section 14024, Code 1939, provides as follows: "If a defendant indicted for a public offense, whose trial has not been postponed upon his application, be not brought to trial at the next regular term of the court in which the indictment is triable after the same is found, the court must order it to be dismissed, unless good cause to the contrary be shown."

In the recent case of Pines v. District Court in and for Woodbury County, Iowa, 10 N.W.2d 574, 578, decided July 27, 1943, this court speaking through Justice Bliss held that such a statute as section 14024 "is a statutory definition of the term 'speedy trial' as conceived by the particular legislature enacting it, with the purpose in mind of more effectively enforcing the constitutional guaranty. [Citing cases.]" The constitutional guaranty is contained in section 10 article I of the Iowa Constitution, providing: "In all criminal prosecutions *** the accused shall have a right to a speedy and public trial ***."

In the Judkins case the defendant, who was in a penitentiary, appeared by counsel who filed a motion to quash an indictment for various grounds, among them being the ground that the grand jury that returned the indictment was illegally drawn because two grand jurors were from the same civil township. The trial court took cognizance of the motion, heard testimony, and entered an order setting aside the indictment on the ground the grand jury was not legally constituted. Upon appeal to the Supreme Court the case was affirmed upon the ground that the trial court could make such an order if in any manner it is brought to the notice of the trial court that the grand jury was not legally constituted. In the course of the opinion Justice Evans pointed out that the motion purporting to be filed on behalf of the defendant was unauthorized and nugatory for [200 Iowa 1234, 206 N.W. 120]: "No right of attack upon the indictment prior to defendant's arrest thereunder is conferred by the statute. *** Nor is there any basis for the court's jurisdiction over the person of the defendant in a criminal prosecution, except pursuant to warrant and an arrest thereunder." The court further stated: "We hold therefore that the district court had no jurisdiction in this case over the person of the defendant, notwithstanding the appearance of counsel for him." It was only because the court could dismiss the indictment on its own motion that the ruling of the trial court was affirmed. Of course the quoted statements and others of like effect in the Judkins case are dicta for the court did affirm the action of the trial court in dismissing the indictments.

But the motions in the instant case can be distinguished from the motion in the Judkins case. There the defendant was attacking the indictment. Jurisdiction over his person would perhaps be necessary for, as the court pointed out: "Under the statute the court upon quashing an indictment, may order the case resubmitted to another grand jury, and may hold the defendant pending such resubmission." Here, there was no attack on the indictment. There could be no resubmission to a subsequent grand jury if the motions were sustained and the indictments dismissed. See Smith v. State, 168 Tenn. 265, 77 S.W.2d 450. The defendant here, by his motions, is seeking the constitutional protection. As we have previously pointed out, the statute merely defines the term "speedy trial" as used in the constitution. The motion in the instant case is directed to the prosecution under a legal indictment wherein the movant asserts his constitutional right has been denied him. Judkins was asserting the indictment was defective. If he was correct, then he was never legally indicted. Since he had never been arrested, he was not in a position to assert the defect in the indictment. Here the "accused" in a legal prosecution for crime is asserting his constitutional rights of "speedy trial" have been invaded. No case has been brought to our attention where any court has held the constitutional right cannot be asserted until the defendant has been arrested, so long as he is not a fugitive. On the contrary we find the courts of other jurisdictions have, with complete unanimity, taken cognizance of such motions filed by the accused, when he was serving a sentence for another crime. We hold the trial court did have jurisdiction to hear the motions filed in this case.

II. The general rule announced in 22 C.J.S., Criminal Law, § 472, p. 726, is as follows: "It is generally held that the fact that accused is confined to the penitentiary on another charge is not good cause for a delay of the trial ***."

With respect to the constitutional guarantee of the right of speedy trial, the rule as stated in 22 C.J.S., Criminal Law, § 467, p. 715, is as follows: "(2) Persons within Guaranty. *** Convicts. One serving a sentence in the penitentiary is entitled to a speedy trial of other crimes with which he is charged."

See, also, 118 A.L.R. 1037, where the general rule is stated as follows: "The general rule, followed in the majority of the states and in the Federal courts, is that, under a constitutional provision guaranteeing to accused a speedy trial, and under statutes supplementing the constitutional provision and enacted for the purpose of rendering it effective, and prescribing the time within which accused must be brought to trial after indictment, a sovereign may not deny an accused person a speedy trial even though he is incarcerated in one of that sovereign's penal institutions under a prior conviction and sentence in a court of that sovereign."

In 15 Am. J. 13, par. 312, the text writer points out that a prisoner can be held for another offense and states: "Conversely, the principle has been applied to the failure of the government to try the accused within the time provided by the legislature in execution of the constitutional provision for speedy trials in criminal cases. In such a case it has been held that the imprisonment will not excuse the government from proceeding to trial on a subsequent indictment within the time limited by law and that its failure to do so entitles the prisoner to the allowance of a motion to discharge him from further prosecution on the second indictment."

The reasons for the rule appear to be well stated in the decisions of the courts in many other states.

In State v. Keefe, 17 Wyo. 227, 98 P. 122, 131, 22 L.R.A.,N.S., 896, 17 Ann.Cas. 161, it is stated: "However, the purpose of the provision against an unreasonable delay in trial is not solely a release from imprisonment in the event of acquittal, but also a release from the harassment of a criminal prosecution and the anxiety attending the same; and hence an accused admitted to bail is protected as well as one in prison. Moreover, a long delay may result in the loss of witnesses for the accused as well as the state, and the importance of this consideration is not lessened by the fact that the defendant is serving a sentence in the penitentiary for another crime." This same quotation was approved in our opinion in Pines v. District Court, supra. It is pertinent here for Keefe was serving a sentence for another crime when he filed his motion to dismiss the indictment.

In Ex parte Schechtel, 103 Colo. 77, 82 P.2d 762, 764, 118 A.L.R. 1032, the court cited a number of cases supporting the above rule and stated: "These cases are based upon the principle that even though the accused under a pending indictment may be confined to a penal institution of the same sovereign, he is, nevertheless, in the actual custody and control of that sovereign and by its authority and at its will may be produced in court for trial upon the untried charge and that a delay of the trial thereon beyond a reasonable time, as contemplated or fixed by constitutional or statutory provisions, entitled the accused to a dismissal of the pending indictment upon precisely the same basis as if he was unrestrained in his liberty. In other words, the circumstance that one is convicted and imprisoned by a given sovereignty does not alter the degree of diligence required of the prosecuting officials of the same sovereignty in giving him a speedy trial upon any subsequent criminal charge."

In Arrowsmith v. State, 131 Tenn. 480, 175 S.W. 545, 546, L.R.A.1915E, 363 it is stated: "The right of the state to prosecute him is not abridged or delayed by the fact that the accused is in such...