Jones v. McClaughry

• Decision Date: 26 February 1915
• Docket Number: 29984
• Citation: 151 N.W. 210,169 Iowa 281
• Parties: EARL G. JONES, Plaintiff and Appellant, v. CHARLES C. MCCLAUGHRY, Defendant and Appellee
• Court: Iowa Supreme Court

151 N.W. 210

169 Iowa 281

EARL G. JONES, Plaintiff and Appellant, v. CHARLES C. MCCLAUGHRY, Defendant and Appellee

No. 29984

Supreme Court of Iowa, Des Moines

February 26, 1915

Appeal from Adams District Court.--HON. H. K. ADAMS, Judge.

Plaintiff remanded.

Earl R Ferguson, C. R. Barnes, for plaintiff.

George Cosson, Attorney General, John Fletcher, Assistant Attorney General, and A. Ray Maxwell, County Attorney, for defendant.

OPINION

THE facts appear in the opinion.--Remanded.

LADD J.

On the 4th day of November, 1913, a preliminary information, charging the defendant with the crime of kidnapping, was filed before a justice of the peace in Adams County, and on hearing, he was bound over to await the action of the grand jury. On the 8th day of November, following, the county attorney prepared and made oath to an information charging the defendant with the same offense and this was filed with the clerk of court and thereafter endorsed by his honor, H. K. Evans, a judge of the district court, approving the prosecution on information. The said judge had been presiding during the day at a term of court holden in Creston in Union County and came by railway to Corning, the county seat of Adams County, in the evening of that day at about eight o'clock and proceeded to the sheriff's office in the court house of said county and went through the regular form of convening court, all officers being there present. Thereupon defendant was brought before the court, fully informed of the charge made against him, and an attorney appointed to defend him. The proceedings are thus described in the record:

"Saturday, November 8, 1913. Court was called at 8:15 P. M. with H. K. Evans, as sole presiding judge. H. F. Hull, Sheriff, and F. D. Lawrence, Clerk.

"Case No. 5255, State of Iowa vs. Earl G. Jones, came up for hearing, and the defendant having filed his written plea of guilty, the court appointed C. W. Stanley as his attorney and informed the defendant of the nature of the crime as charged in the information and asked the defendant if he had any reason why judgment should not be pronounced at this time to which the defendant replied in the negative. The judgment and sentence was then entered in the calendar and court was declared in recess until further called."

Mittimus was issued and the defendant taken to the reformatory at Anamosa. On May 15, 1914, he, as plaintiff, presented a petition to one of the judges of this court praying that a writ of habeas corpus issue and alleging as grounds therefor: First, that neither the court nor judge thereof had jurisdiction to sentence the plaintiff; (a) for that sentence was not pronounced at the place prescribed by Chap. 188 of the Acts of the 34th G. A.; (b) that the information was filed before being approved by the judges; (c) that no valid judgment was ever entered of record; (d) that the court was not in session but judgment entered in vacation; (e) that even if the court were in session, a written plea of guilty was not in compliance with the law. Second, that Sec. 15 of Article 5 of the Constitution was never adopted in the manner exacted by the Constitution and therefore the prosecution by information instead of by indictment was wholly unauthorized and void.

I. Counsel contend in behalf of the defendant that court was in session and that the judgment was not entered in vacation. It appears from the record that the October, 1913, term of court in and for Adams County convened at the time prescribed by the order of the judges. On October 28, 1913, the record shows that the "court was declared in recess until further order." There was no other session until the convening of court in the evening of November 8, 1913. It is argued that inasmuch as the adjournment was not to a day certain, the term lapsed as a matter of law. There is nothing in the Code so providing. On the contrary, the fair inference is that the term of court commencing on the day fixed by law continues until it expires by reason of the commencement of another term in the same county or because of having been adjourned sine die. The adjournment from day to day or to some distant day is simply for convenience in the transaction of business. Such adjournments do not suspend the functions of the court, for it is common practice for the grand jurors to continue in session during the intermissions of court, and for petit juries to continue in deliberation and the court to receive verdicts during the recesses incident to the adjournment from day to day. These juries are part of the court, performing important functions, and the court does not suspend its functions so as to be able to protect juries and enforce proper conduct on their part. "For all general purposes, the court is considered in session from the commencement to the close of its term." Barrett v. State, 1 Wis. 175. At common law, the whole period of a term was looked upon as a single day, and everything done at the term was regarded as done of that day. We need not point out what innovations statutes have made on this doctrine but we nowhere find it entirely abrogated.

In Union Pacific Ry. Co. v. Hand, 7 Kan. 380, 387, the trial court adjourned from Saturday until Monday and the judge did not appear until Wednesday, when a motion for new trial was overruled, and the supreme court held the trial court properly in session.

In Labadie v. Dean, 47 Tex. 90, it was said: "The sessions or sittings of the court during term are entirely within the discretion and control of the court. And its orders in respect thereto are intended for its convenience and the convenience of parties interested in its proceedings. Hence they may be altered, revoked, or annulled from time to time, as the exigency of the business to be transacted may require. The orders of adjournment of its sessions from day to day, or to a particular hour of the day, are mere announcements of its proposed or intended order of transacting the business to come before it during the term. But certainly the failure of the court to meet at the hour or on the day to which it had thus taken a recess, can in no way affect or put an end to its term."

In Commonwealth v. Bannon, 97 Mass. 214, the judge had been holding a term of court and on December 3rd, without adjourning, left to hold a term in another county. In the meantime, the grand jury continued their investigations and he returned on the 10th or 11th and received the report of the grand jury, returning several indictments, and it was insisted by those indicted that the term of court had lapsed because of an adjournment to a day not certain. Concerning this the court remarked: "Such a result would certainly be contrary to the intent with which the course adopted by the judge was taken. It is not a case of neglect or omission to hold a term of court at the time appointed by law. The court was duly opened for the transaction of business, and it was allowed to continue without adjournment from day to day for the very purpose of enabling the grand jury to perform that portion of their duty which did not require the presence and action of the judge, while he was absent exercising judicial functions in another county. We know of no rule of law which requires during a continuance of a term after it has been properly begun, either that there should be daily adjournments of the court, or that the judge should remain in the town or county where the court is holden during the whole time that juries, either grand or petit, are engaged in deliberating and acting on matters properly submitted to their consideration. Such has never been the practice in this Commonwealth, and to require it would cause serious inconvenience, while it would produce no practical benefit in the administration of justice."

In State v. Martin, 24 N.C. 101, where the objection was that the days of finding the indictment, arraignment and plea did not appear from the record, and it could have been known by no one that these were at the same term of court, it was said: "The term of court is in legal contemplation as one day; and although it may be open many days, all its acts refer to its commencement, with the particular exceptions in which the law may direct certain acts to be done on certain other days. It is seldom necessary that the day of any proceeding should appear in making up the record, distinct from that of the beginning of each term, although a minute may be kept of each day's doings. Nor is it necessary that there should be adjournments from day to day, after the term is once opened by the judge; nor, if there should be, that they should be recorded, in order to preserve the authority of the court to perform its functions. The court may, in fact, not adjourn during the whole term, but be always open; though for the convenience of suitors, an hour of a particular day, or of the next day, may be given them for their attendance. If the record state the time of doing an act, as the statement is unnecessary, so it is harmless surplusage, unless the day be beyond the period to which the term legally extends."

In State v. McBain, 102 Wis. 431, 78 N.W. 602, the proposition urged was that unless a term of court is kept alive by adjourning from one day to another, the term of court ends; and with reference thereto, the court said "According to modern policy and methods a term of court, having duly commenced, continues until the court by an affirmative judicial act terminates it, or until the next term. . . . In deference to modern methods of business in court, involving in many jurisdictions the combination of equitable and legal proceedings, the term of court has come to mean a particular time within which there may be many sessions, while anciently it meant a single session,...