Pines v. District Court in and for Woodbury County

• Decision Date: 27 July 1943
• Docket Number: 46287.
• Citation: 10 N.W.2d 574,233 Iowa 1284
• Parties: PINES v. DISTRICT COURT IN AND FOR WOODBURY COUNTY et al.
• Court: Iowa Supreme Court

10 N.W.2d 574

233 Iowa 1284

PINES v. DISTRICT COURT IN AND FOR WOODBURY COUNTY et al.

No. 46287.

Supreme Court of Iowa

July 27, 1943

Rehearing Denied Oct. 22, 1943.[Copyrighted Material Omitted]

Frank Margolin and Geo. G. Yeaman, both of Sioux City, for petitioner.

John M. Rankin, Atty. Gen., Don Hise, Asst. Atty. Gen., and Edward L. Moran, Co. Atty., and Robert E. Beebe, both of Sioux City for respondents..

BLISS Justice.

This appeal involves the interpretation and the application of the provisions of section 14024 of the Code of 1939, which are as follows: "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."

On May 7, 1942, during the May term of court, the grand jury of Woodbury County returned an indictment against the petitioner, charging him with the crime of larceny by artifice.At that time there was another indictment pending against him charging another offense, which had been returned on January 17, 1941.Mr. Margolin appeared of record as the attorney for the petitioner in the earlier indictment, and had procured one or more continuances for him.On May 15, 1942, the petitioner appeared in person at the sheriff's office and gave the required bond for his appearance.In conformity to the usual practice in the Woodbury District Court, no petit jury was called to try cases during the May, 1942, term, which continued to September 13th.The September term began on September 14, and closed on November 1, 1942.The petit jury for that term was discharged on October 14th.The November term began on the second day of that month and closed on January 10, 1943.The jury was discharged November 25, 1942.The January, 1943, term opened on January 11th.On the 4th day of February, 1943, in the January term, the petitioner, by his attorneys, one of whom was Mr. Margolin, filed a motion to dismiss the second indictment under the provisions of section 14024.Prior to the filing of this motion, and during the January term while the jury was present, the county attorney informed the petitioner's attorney, in the presence of Judge Prichard, who had charge of the criminal division, that the State was ready to proceed with the trial of the second indictment.Mr. Margolin then told the Court that he was going to file the motion to dismiss and that he was not asking that the jury be held.The motion is based only on section 14024, and no claim is made that the case had been continued for three terms of court.The State filed a resistance to the motion on February 11, 1943, on which day hearing was had, and a ruling followed on February 16th denying the motion.The court found, in substance, as follows: the facts respecting the terms of court as above stated; that Mr. Margolin represented the defendant(petitioner herein) on the first indictment, but was not employed by him on the second indictment until the January, 1943, term; that at each of the above-stated terms of court, in conformity to its rules, a day was set for the arraignment of all defendants against whom indictments had been returned, and who had been apprehended, and not previously arraigned, and that said day for arraignment was publicly announced in open court each term; that soon after the return of the indictment herein the defendant was apprehended and posted his appearance bond on May 15th, 1942; that he did not present himself for arraignment or plea at the arraignment day in the May, 1942, term, nor at any subsequent arraignment date, and that he has not yet been arraigned or entered a plea to the indictment, nor moved against the form or substance of the indictment; the defendant at no time asked for a trial of his case, and at no time placed himself in position that a trial of his case was possible; that the county attorney and Mr. Margolin, representing this defendant, had several conferences relative to the possibility of a plea by the defendant in the case pending under the first indictment, and during these conferences the second indictment was mentioned, although it was made clear that Mr. Margolin was not employed to represent defendant therein; the county attorney, because of said conversations regarding a possible plea, felt it inadvisable to press the second criminal case until such possibilities of a plea had come to a head; and the second cause was continued from term to term under a rule that all cases on the calendar not disposed of at the close of a term of court should be continued to the next term and that good and sufficient causes for such continuances existed.It was the conclusion of the court that arraignment having been provided for the defendant's convenience and information, and his trial being impossible until after his arraignment or waiver thereof, and defendant failing to avail himself of arraignment was not in a position to complain of failure of trial during the term next succeeding the term at which the indictment was returned.The court for the reasons mentioned therefore denied the motion for dismissal.

The record sustains the findings of the court.At the hearing on the motion but one witness testified.He was Mr. Rawlings, the county attorney in 1942.Of a conversation with Mr. Margolin respecting this casehe testified: "I called Mr. Margolin's office and asked him in the September Term, and asked him if he was ready to go to trial on the Pines cases.He stated he was leaving the city on business and would not be back for a few days.I told him if he wanted a continuance he should have his girl prepare a motion for it and have it over to court while the jury were here.When Mr. Margolin returned to the city he came to my office and handed me a paper, and he said, 'This is a motion for continuance you asked for.'I said, 'Is this for both of them?' and he said, 'Yes'.I understand in that respect, so that there won't be any misunderstanding, that at the time Mr. Margolin was referring to men by the name of Wilson and Pines, and I was referring to the two cases against Pines and did not know that he had that in mind.In a subsequent conversation Mr. Margolin advised me that was what he meant when he referred 'in both matters' that he was referring to the two defendants and I was referring to one defendant in two cases. ***

"Q.Your impression was that as far as case No. 22770, your impression was that a motion for a continuance was being filed in that case by Mr. Margolin?(No. 22770 was the second indictment.)A.That was my interpretation of it.

"Q.And relying upon that motion nothing further was done in the September term of court?A.Well, the jury had gone at that time.You see Mr. Margolin's return to the city was after the jury had left, then he came to the office and we had that conversation.It was some time the latter part of September or in October."*** These statements never got beyond a conversational stage, but because of the progress that was being made toward the entering of a plea by Pines in the first case *** we never, after learning of the posting of the appearance bond by Pines, pressed for a forfeiture, or asked for forfeiture of that appearance bond at the time of any subsequent arraignments, assuming that it would simply embarrass proceedings that were taking place relative to the possibility of a plea, and assuming that Pines would appear to be arraigned at the proper time.***

"Q.And it was by virtue of these conversations, Mr. Rawlings, that you assumed that Mr. Margolin represented the defendant Pines in both indictments?A.What I now find to have been an erroneous assumption, at the time of that conversation I know he was not appearing for him, *** it was just simply at that time in the confusion of these talks about these cases I overlooked the fact that he was not appearing in the second case.

"Q.But in the conversations relative to fines as far as the disposal of the cases are concerned, didn't Mr. Margolin talk to you about both cases?A.Well, the conversation in that respect, yes, on a factual basis was as to both cases, and as to the second case it was involved because of the fact that the conversation took on this turn that the second indictment would undoubtedly be dismissed if the man was to plead on the first charge, or that in substance.

"Q.And that in substance was the conversation that more or less took place between you and Mr. Margolin?A.As I recall it, yes.*** A. I might add, if I may, that we knew that we could not press the matter for trial until after the man had been arraigned, and he was not here for arraignment, and we didn't ask for forfeiture of the bond, because, as I previously stated, those facts that I have set forth."

I.One of the many complaints of the common people of early England which finally resulted in the charters laying the foundations of their political and personal liberties, were those against the harshness of the criminal laws, both substantive and procedural.Bail was beyond the reach of many, and seldom permitted, with the result that the accused often languished in jails for lorg periods before being brought to trial.It was because of this and other oppressions that the Bill of Rights became the first ten amendments to the Federal Constitution.The Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, ***."Since the first ten amendments were intended to operate solely on the Federal government, and the Sixth Amendment had no application to proceedings in state courts(Brown v. New...