State v. Clark
| Decision Date | 06 February 1940 |
| Docket Number | 44887. |
| Citation | 290 N.W. 46,227 Iowa 1082 |
| Parties | STATE v. CLARK. |
| Court | Iowa Supreme Court |
Appeal from District Court, Monroe County; Charles F. Wennerstrum Judge.
Defendant was indicted for the crime of burglary, as defined in Sections 12994 and 12995 of the Code, 1931. Trial was had to a jury, verdict of guilty was returned, sentence imposed, and defendant appeals.
Affirmed.
Superseding opinion in 285 N.W. 701.
Alfred M. Pabst, of Albia, for appellant.
Fred D. Everett, Atty. Gen., John E. Miller, Co. Atty., of Albia and Jens Grothe, Asst. Atty. Gen., for appellee.
This case involves a question of procedure in criminal cases in this court. A similar question has been discussed by us and determined in the case of State v. Dunley, 290 N.W. 41, filed at this term. As the facts in this case present a little different question, we will briefly review them.
On February 21, 1935, defendant was indicted for the crime of burglary with aggravation, as defined by Sections 12994 and 12995 of the statutes of Iowa (Code 1931), the crime having been committed about November 10, 1934. Defendant's trial resulted, on March 14, 1939, in a verdict of guilty of the crime of burglary. On May 24, 1939, motion for new trial and exceptions to the instructions were argued, submitted overruled, and defendant sentenced to the state penitentiary at Fort Madison, for an indeterminate sentence, not to exceed twenty years.
On April 17, notice of appeal was served upon the county attorney and filed with the clerk of the district court. On April 26, the clerk's transcript was filed in this court pursuant to Section 13998 of the Code 1935, and, in accordance with Section 14004 of the Code, 1935, the cause was docketed for submission at the May term with other causes from the second judicial district. No notice upon the attorney general of an election to submit the case on printed abstract, brief and argument was filed with the clerk of this court, as required by Rule 32, and, accordingly, on May 2 the cause was duly submitted on the clerk's transcript. On May 9, the court, having examined the record, and having found no error warranting a reversal, filed an opinion affirming the judgment. State v. Clark, 285 N.W. 701.
On May 15, appellant filed a petition to set aside the submission to reinstate the cause and for extension of time to file abstract. The grounds for the motion were, among others, that the attorney for appellant had had various negotiations with the county attorney and with the attorney general in reference to securing a transcript of the record at the expense of the county. Appellant contended that, by virtue of the arrangement made with the attorney general and the county attorney regarding the securing of a transcript, the attorney general had waived the requirement of a formal notice pursuant to Rule 32. Appellant's application was not contested...
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