Paul v. District Court of Johnson County

• Decision Date: 17 March 1942
• Docket Number: 45838.
• Citation: 2 N.W.2d 751,231 Iowa 1027
• Parties: PAUL v. DISTRICT COURT OF JOHNSON COUNTY et al.
• Court: Iowa Supreme Court

2 N.W.2d 751

231 Iowa 1027

PAUL v. DISTRICT COURT OF JOHNSON COUNTY et al.

No. 45838.

Supreme Court of Iowa

March 17, 1942

Kenneth M. Dunlop, of Iowa City, for petitioner.

John M. Rankin, Atty. Gen., Jens Grothe, Asst Atty. Gen., and Edward F. Rate, Co. Atty., of Iowa City, for respondents.

OLIVER Justice.

A county attorney's information, filed in the district court of Johnson County, on May 2, 1940, charged petitioner with the crime of operating a motor vehicle while intoxicated. On May 14, 1940, he was arrested and furnished bail. He has since been at liberty. The February 1940 term of court had been informally closed on April 6, 1940, but was not formally adjourned until May 3, 1940, the day after the information was filed. Thereafter, the May term, which started May 6, and the September and November terms intervened without trial of the accused. Nor was he arraigned until March 6, 1941, during the February 1941 term, which followed the November 1940 term. On February 13, 1941, a day of the February term petitioner moved to dismiss the information, alleging that by reason of said delay in trial the court was deprived of all jurisdiction under said information. This motion was overruled. Thereupon petitioner instituted this proceeding in certiorari to review said ruling. Respondent has filed no brief herein.

The following Code sections are here pertinent:

"14024 Delay in trial. 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."

"14025 Discharge on undertaking. If the defendant be not indicted or tried as above provided, and sufficient reason therefor is shown, the court may order the prosecution continued from term to term, and discharge the defendant from custody on his own undertaking, or on the undertaking of bail for his appearance to answer the charge at the time to which the same is continued, but no continuance under this section shall be extended beyond the following three terms of the court."

I. Petitioner relies upon the last clause of Section 14025, which provides "no continuance * * * shall be extended beyond the following three terms of the court." In this case the motion to dismiss was not made until the fourth term after the information was filed. Petitioner contends that the court had then lost jurisdiction; that the dismissal was then mandatory, and that the court in refusing to so order exceeded its proper jurisdiction and acted illegally. It will be noted, however, that the dismissal required by Section 14024 is therein limited to an accusation against a defendant whose trial has not been postponed on his application.

In Davison v. Garfield, 219 Iowa 1258, 257 N.W. 432, 433, 260 N.W. 667 it was said that the two foregoing sections should be read together. They were interpreted to mean that if good cause is shown, the court may continue the case but not beyond three terms of court. In that case the court said, "Clearly, cases which have been postponed on defendant's application * * * are not subject to dismissal under the provisions of section 14024. It seems equally clear that such cases are not subject to the provisions of section 14025, * * *."

At the hearing on the motion to dismiss the information involved in the case at bar, there was a showing on behalf of the State that the criminal case against defendant was continued over the May 1940 term by an oral understanding and agreement between the county attorney and counsel for the defendant. Defendant submitted evidence to the contrary. The trial court found there was such oral agreement between the attorneys. The evidence was in conflict and we will accept the finding of the trial court upon this point. State v. Smith, 106 Iowa 701, 710, 77 N.W. 499, 502.

In State v. Smith, supra, the delay appears to have been due to an agreement or to requests for continuance by defendant's attorney and to representations that defendant, on account of physical infirmity, was unable to appear for trial. The trial court refused the discharge. Upon appeal, after conviction, the judgment was affirmed.

In Harris v. District Court, 226 Iowa 606, 284 N.W. 451, the county attorney permitted a criminal case, upon which an indictment had been returned at a previous term, to go over the date set for trial in the January term on account of the illness of defendant's attorney. Later, during the January term, defendant filed a demurrer to the indictment. This was submitted at the April term, was overruled at the September term and the case was assigned for trial. Thereupon defendant filed an amendment to the demurrer and a motion to quash the indictment on account of which it appears the case was not tried at the September term. We held said case had been postponed upon defendant's application, and, therefore, was not subject to dismissal under the provisions of Code Sections 14024 and 14025.

Thus it appears that under the provisions of Sections 14024 and 14025 a delay in trial, due to the action or agreement of the defendant or his counsel, will be considered a postponement at his request rather than a continuance requiring a showing of good cause on the part of the State. Therefore, we conclude the agreement that the trial of the information against petitioner in the case at bar should not be had at the May 1940 term constituted a post-ponement and not a continuance within the purview of said sections. It follows that the May term should not be included in computing the number of terms over which the case was continued....