State v. Bamsey
| Decision Date | 24 June 1929 |
| Docket Number | 39683 |
| Citation | 226 N.W. 57,208 Iowa 802 |
| Parties | STATE OF IOWA, Appellee, v. A. C. BAMSEY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Union District Court.--A. R. MAXWELL, Judge.
This was a prosecution for bootlegging, and the defendant, A. C Bamsey, was convicted by a jury. From errors alleged to have been committed by the district court he appeals.
Reversed.
Frank Wisdom and Donald F. Wisdom, for appellant.
John Fletcher, Attorney-general, and Neill Garrett, Assistant Attorney-general, for appellee.
On the 21st day of October, 1927, the grand jury of Union County purported to indict the defendant-appellant, A. C. Bamsey for the offense of bootlegging, committed on July 2, 1927. In the indictment the grand jury charged that the said Bamsey "did willfully and unlawfully carry about in a vehicle certain intoxicating liquors, with intent to sell, then and there, and did sell to one Francis Phelan one gallon of said intoxicating liquor, then and there, for the sum of $ 18." Thereafter, on September 11, 1928, just prior to the commencement of the trial on that day, the county attorney orally, in open court, in the presence of the appellant and his counsel, asked for permission to amend the indictment. Over the appellant's objection, the court allowed the amendment, to the extent that there was entirely eliminated all reference to the Francis Phelan sale. Appellant attacked this amended indictment by demurrer and motion to quash. Then he waived arraignment thereunder, pleaded not guilty to the offense therein charged, and expressed his willingness to proceed with trial thereon. Conviction resulted; and to obtain relief therefrom, various errors are now here assigned, concerning the court's ruling on the sufficiency of the indictment, the allowance of the amendment thereto, the admissibility of certain evidence, and erroneous instructions. Convenience dictates that these propositions shall be considered in the order following.
I. At the outset, appellant objects to the method adopted by the State for amending the indictment. He contends that the same was not done in accordance with the requirements of the 1927 Code relating thereto. Those statutory provisions are embodied in four sections, as follows:
While the amendment, as before stated, was dictated into the record by the county attorney in open court, in the presence of the defendant-appellant and his counsel, yet the same was done before the trial began. Although the defendant and his counsel were in the courthouse preparatory to proceeding with the trial, nevertheless the trial contemplated by Sections 13745 and 13746, supra, had not begun. It appears that the appellant had not been arraigned, nor had he pleaded to the indictment. There could be no trial at least until after the arraignment and plea. As to when thereafter the trial begins, we do not now decide. Section 13804 of the 1927 Code contains this language:
A trial, as contemplated by Sections 13745 and 13746, supra, had not started, even though the same was about to commence. Lines of demarcation are necessary for the determination of issues, and no matter how near such line is approached, if it is not reached and crossed, the legal principles applicable to the facts within the field of investigation on one side thereof cannot be applied to those on the other. Hence, in the case at bar, Section 13745, supra, controlled the method of amending the indictment, because the trial was not yet in progress.
II. That section requires that the application for an amendment and a copy of the proposed "amendment shall be served upon the defendant, or upon his attorney of record, and an opportunity given the defendant to resist the same."
This is what the appellant demanded in the present case, but his protest was overruled. Nevertheless, the State argues that the defendant-appellant waived any right to that particular statutory method of amendment because he was present in court with his counsel, heard the amendment dictated into the record, made objections thereto, demurred to it, was arraigned thereunder, and pleaded not guilty, moved to quash it, and expressed his willingness to proceed to trial thereon. By way of answer to the State's theory in this regard, the appellant says that he immediately demanded compliance with the statute aforesaid, asked for a copy of the amendment, and maintained and renewed his exceptions to the procedure at every stage of the trial consistently throughout to this court. Such is the issue at this juncture. Can the county attorney ignore Section 13745 and amend the indictment by dictation into the record under Section 13746, supra, even though the trial has not begun? We think not.
Under Section 13744, supra, the district court, on motion of the State before or during the trial, may order an amendment. Sections 13745 and 13746, supra, express the way in which such motion may be made. The motion in those sections is referred to as an application, and if before the trial, it must be in writing, but during the trial, it may be dictated into the record. Motion, as provided in Section 13744, supra, cannot be made in any way except as permitted in Sections 13745 and 13746, supra. An oral application, when a written one is required, would amount to no motion at all, and consequently no amendment could be ordered thereon. Were it otherwise, the statutory mandates could be entirely ignored, on the theory of waiver; because, if the defendant did not object, it would be argued that he had relinquished his right so to do, and on the other hand, if he did make protest, again the State would contend, as it here does, that by so doing a waiver resulted. No indictment can exist except in the method and way allowed by the statute. Likewise, the amendment contemplated by Section 13744 is also statutory, and it cannot become a part of the indictment except through the method authorized by the legislature. Before the trial begins, the statute requires that the application shall be served on the defendant or upon his attorney of record; while, during the trial, the application may be dictated into the record. Authority to the contrary is not cited. State v. Japone, 202 Iowa 450, 209 N.W. 468, discusses a problem where, during the trial, a written application was served, but no formal amendment was filed. Suggestions there were made that the defendant waived the irregularity because he made no objections thereto until exceptions to the instructions were taken. However, that does not determine the present controversy, because the express terms of the statute were not violated, while here they are.
Through every available method, the appellant advised the State of the irregularity and illegality. Waiver, under those circumstances, cannot arise, and prejudice must result because the appellant was required to go to trial on the indictment wrongfully amended, which, because thereof, amounted to a different indictment from that returned by the grand jury. Error therefore appears.
III. When making his motion for the amendment, the county attorney requested permission to strike or remove certain portions of the indictment, and to substitute therefor specific words. After so doing, the county attorney continued his application in the following language:
"So that said indictment, as amended, will read as follows: * * * the said A. C. Bamsey * * * in the county aforesaid, did willfully and unlawfully carry about in a vehicle certain intoxicating liquors with intent to sell said intoxicating liquors contrary to the statute," etc.
Following the foregoing was the official signature.
Grievance here is predicated by appellant upon the ground that the indicated action of the county attorney resulted in not an amended indictment, but a substituted one. So the appellant suggests that the substitution was not the product of the grand jury, but rather of the county attorney. Undoubtedly it is true that the county attorney cannot substitute indictments, because the statute permits certain amendments only. State v. Kiefer, 183 Iowa 319, 163 N.W. 698. Substitution, nevertheless, as distinguished from amendment did not result from the county attorney's action in the case at bar, because the form outlined by him, following the elimination and substitution, was not the amendment, but a word picture of the amended indictment, offered for convenience. The amendment consisted of the eliminations and substitutions aforesaid; while the form dictated thereafter was no part of the change in the indictment, but rather, an indication of how the...
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