Keegan v. District Court in and for Buchanan County

• Decision Date: 12 November 1946
• Docket Number: 46914.
• Citation: 24 N.W.2d 791,237 Iowa 1186
• Parties: KEEGAN v. DISTRICT COURT IN AND FOR BUCHANAN COUNTY et al.
• Court: Iowa Supreme Court

24 N.W.2d 791

237 Iowa 1186

KEEGAN v. DISTRICT COURT IN AND FOR BUCHANAN COUNTY et al.

No. 46914.

Supreme Court of Iowa

November 12, 1946

O'Brien and Molloy, of Independence, for petitioner.

John M. Rankin, Atty. Gen., and Charles H. Scholz, Asst. Atty Gen., for respondent.

HALE Justice.

On June 11 1945, preliminary information was filed in the office of a justice of the peace of Buchanan county against Walter Keegan, Petitioner herein, accusing him of the crime of operating a motor vehicle upon the highway while in an intoxicated condition, contrary to the provisions of section 5022.02, Code of 1939, section 321.281, Code of 1946. Defendant in the information waived preliminary hearing. He was held to answer under bond of $500 which he furnished, and released from custody. The proceedings before the justice of the peace were duly transcripted to the district court on the same day, June 11. The April term of court, which began on April 14, was then in session.

The next regular term of court in Buchanan county after the hearing before the justice, began on September 4, 1945. No grand jury was called or was in session during that term. The next regular term began November 4, 1945, and again no grand jury was called or was in session. The first term of court held in 1946 began on February 4. During all these terms of court Robert R. Melrose was the county attorney, but at the February, 1946, session of the grand jury, on motion of the attorney general, Charles H. Scholz, assistant attorney general, was permitted by the court to appear before and present matters to the grand jury, and the county attorney was excluded. Before the grand jury was sworn, Keegan defendant in the prosecution, and hereafter termed plaintiff in this proceeding, though duly called in grand jury, on February 20, 1946, returned three indictments, one being against the plaintiff herein for the same offense with which he was charged at the preliminary hearing. On February 23 plaintiff appeared, and through his attorneys O'Brien and Molloy, who had been his attorneys at the preliminary examination, waived formal arraignment, stated he was indicted by his right name, and filed written motion for dismissal of the indictment. The motion set out the same facts to which we have referred, and which were stipulated by counsel. On March 16 the motion was overruled. The ruling of the court is challenged in the certiorari proceeding. No record was filed by petitioner in this court, but a full and complete return was made by the district judge, and the facts above cited are shown thereby, in addition to the stipulation.

I. In support of his motion petitioner cites section 14023, Code of 1939, section 795.1, Code of 1946:

'Failure to indict. When a person is held to answer for a public offense, if an indictment be not found against him at the next regular term of the court at which he is held to answer, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.'

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