Korf v. Jasper Cnty.

• Decision Date: 19 September 1906
• Parties: KORF v. JASPER COUNTY.
• Court: Iowa Supreme Court

132 Iowa 682

108 N.W. 1031

KORF

v.JASPER COUNTY.

Supreme Court of Iowa.

Sept. 19, 1906.

Appeal from District Court, Poweshiek County; John T. Scott, Judge.

Action for services rendered in the defense of a person accused of murder. Verdict was directed for defendant, and judgment rendered thereon. The plaintiff appeals. Reversed.Morgan & Korf and C. O. McLean, for appellant.

P. H. Cragan, Co. Atty., and Harrah & Meyers, for appellee.

LADD, J.

In February, 1903, Hannah Laballeur was indicted for the crime of murdering her husband. She employed C. O. McLean, Esq., to defend her. At the first trial, which resulted in a disagreement of the jury, he had no assistance. She was put on trial a second time in December, 1903. Shortly prior thereto, the body of the deceased had been exhumed and examined in the absence of the accused and her attorney, and a few days before the trial, notice that the three physicians who had examined the body, and four others, would be called as witnesses by the state, was served upon the defendant. Thereupon McLean applied to the court, Judge Preston presiding, for assistance, saying: “I want to ask that I have assistance in this case, and I ask that Mr. Korf be appointed to assist me.” The county attorney protested against the appointment on the ground that the defendant had ample means to employ counsel. Two attorneys of experience, one appointed by the court and the other employed by the relatives of the deceased, were assisting the county attorney. After some parley, the court with the remark that “there being three attorneys on the other side, I think it due the defendant that there be an assistant to Mr. McLean,” ordered, as appears from the journal, “H. C. Korf appointed to defend.” It does not appear whether the application of McLean was at the request of the accused in person but, as he was acting as her attorney, this, in the absence of any showing may be presumed. This appointment is assailed as not binding on the county, on the ground that it was not a party to the action. It was not such. State v. Behrens, 109 Iowa, 58, 79 N. W. 387. But it was not essential that the county should have been a party in order to fix its liability. Hyatt v. Hamilton Co., 121 Iowa, 292, 96 N. W. 855, 63 L. R. A. 614, 100 Am. St. Rep. 354;Hall v. Washington Co., 2 G. Greene, 473. Its obligation is determined by statute. Section 5314, Code, provides that “an attorney appointed by the court to defend a person indicted for homicide, or any offense, the punishment of which is life imprisonment, shall receive from the county treasurer a fee of $20.00 per day for time actually occupied in court in the trial of defendant. * * * To be entitled to such compensation the attorney must file with the court his affidavit that he has not directly or indirectly received or entered into a contract to receive any compensation for such services from any source. Only one attorney in any case shall receive such compensation.”

Again it is argued that the accused had means to employ counsel. But that was for the court to decide, before assigning an attorney to defend her. This clearly appears from section 5313, Code, authorizing such appointment: “If the defendant appears for arraignment without counsel, he must, before, proceeding therewith, be informed by the court of his right thereto, and be asked if he desires counsel, and if he does, and is unable to employ any, the court must allow him to select, or assign him counsel, not exceeding two, who shall have free access to him at all reasonable hours.” Should the court find a person accused of crime unable to employ counsel, it is no part of the duty of the attorney required to make the defense to challenge the correctness of this finding. He is not a party to the proceeding, and necessarily must rely on the court's order as authority for interposing such defense in behalf of the accused as the circumstances of the case may exact. As an officer of the court he cannot refuse to act. Hall v. Washington County, supra; Hyatt v. Hamilton Co., supra; Barnes v. Commonwealth, 23 S. E. (Va.) 784. It is a duty he owes, not only to the court, but to his profession, to the administration of justice and to humanity not to withhold his aid or spare his best efforts in the defense of one “who has the double misfortune to be stricken with poverty, and accused of crime. No one is at liberty to decline such an appointment and few, it is to be hoped, would be disposed to do so.” Cooley, Const. Lim. 406. When appointed to defend, his compensation for services rendered under such appointment are definitely fixed, and no discretion is left to officers of the county with respect to the propriety of...