State v. Couneham
| Decision Date | 12 December 1881 |
| Citation | 57 Iowa 351,10 N.W. 677 |
| Parties | STATE OF IOWA v. COUNEHAM. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Story district court.
At the September term, 1880, of the Story district court, the defendant was indicted for resisting an officer serving legal process, and at the same time he appeared in person and by counsel and waived arraignment, and filed a plea of not guilty. The cause was thereupon continued to the February term, 1881, and the defendant gave bond for his appearance in the sum of $200. At the February term, the defendant not appearing in person, his bond was forfeited and judgment was rendered against the defendant for $30, the costs of suit. The defendant appeals. The material facts are stated in the opinion.Martin & Sellers and J. S. Frazier, for appellant.
No argument for appellee.
1. At the February term, 1881, the defendant's attorney filed a motion, stating that the clerk of the court refused to issue subpœnas for the defendant's witnesses, and asking the court to require the clerk to issue subpœnas for five witnesses named. On February 3d this motion was sustained, and the clerk was required to issue subpœnas. On the fourth of February the defendant's attorney filed a motion and affidavit for a continuance till the next day, or to a subsequent term of the court, setting up the particular facts intended to be proved; that defendant was unable to obtain subpœnas until the 3d; and that by a mistake of the deputy sheriff the witnesses were not subpœnaed to appear on the 4th. The state filed no objections to the motion for a continuance. The court thereupon overruled the motion for a continuance. The case was then called for trial, and the defendant did not appear in person, but appeared by attorney, who waived the defendant's personal appearance, and announced himself ready for trial, and demanded a trial. The court refused to try the cause, and forfeited the defendant's bond, and afterwards, upon motion of the district attorney, rendered judgment against the defendant for $30 costs.
The offence for which the defendant was indicted is a misdemeanor. Code, § 3960. Section 4351 of the Code provides: “If the indictment be for a misdemeanor, the trial may be had in the absence of the defendant, if he appears by counsel.” Under this statute it was competent for the defendant to appear by counsel and demand a trial. It was error for the court to refuse the defendant a trial and order a forfeiture of the bond....
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