State v. Di Paglia

• Decision Date: 18 September 1956
• Docket Number: No. 48937,48937
• Parties: STATE of Iowa, Appellee, v. Floren DI PAGLIA, Appellant.
• Court: Iowa Supreme Court

Page 472

78 N.W.2d 472

248 Iowa 97

STATE of Iowa, Appellee, v. Floren DI PAGLIA, Appellant.

No. 48937.

Supreme Court of Iowa.

Sept. 18, 1956.

Rehearing Denied Nov. 16, 1956.

C. T. Cardamon, R. E. Hanke, Des Moines, for appellant.

Dayton Countryman, Atty. Gen., Raphael R. R. Dvorak, George C. West, Asst. Attys. Gen., Leo J. Tapscott, County Atty., Polk County, Des Moines, for appellee.

HAYS, Justice.

This case is here for the second time. See State v. Di Paglia, Iowa, 71 N.W.2d 601.

Appellant was indicted and convicted of bribery in an athletic contest, Section 739.12, Code of 1954, I.C.A. He was sentenced to an indeterminate period not to exceed ten years in the Men's Reformatory at Anamosa, Iowa. On appeal the judgment was modified, affirmed, and remanded. We held the crime with which he was charged was not a felony and remanded the same for judgment accordingly.

Upon the remand the trial court entered judgment of a term of five months at hard labor in the Polk County Jail, and to pay a fine in the sum of $1,000. Upon failure to pay the fine, the defendant should be committed to the Jail for an additional period of time at the rate of $5 per day; same to run consecutively with the five months. It is from this judgment that the present appeal was taken.

Appellant assigns three errors. (1) Section 739.12, Code of 1954, I.C.A., is unconstitutional in that it violates the provisions of Article I, Section 17, Iowa Constitution, I.C.A. (2) Section 739.12, Code of 1954, I.C.A., violates Article I, Section 6, Constitution of Iowa. (3) Section 739.12, Code of 1954, I.C.A., violates the provisions of the 14th Amendment, U.S. Constitution.

This being the second appeal, the question of the law of the case is important. In Des Moines Bank & Trust Co. v. Iowa Southern Utilities Co., 245 Iowa 186, 61 N.W.2d 724, 726, we said: 'We are firmly committed to the doctrine that the legal principles announced and the views expressed by us in an opinion, right or wrong, are conclusively binding, throughout further progress of the case, upon the litigants, the trial court upon remand and this court in later appeals. Likewise, matters necessarily involved in the determination of a question are settled by the opinion when such matters are again presented on a subsequent appeal.' See also: Lawson v. Fordyce, 237 Iowa 28, 21 N.W.2d 69; 5 C.J.S., Appeal and Error, §§ 1821 and 1825. It is appellee's contention that all matters here raised were determined in the former appeal, and it thus is necessary to examine that decision.

The statute under consideration in the first appeal is the same one here assailed, i. e., Section 739.12, Code of 1954, I.C.A. In the former appeal the constitutionality of the statute was assailed; it being specifically alleged that it violated Article I, Section 9, Iowa Constitution; Article I, Section 17, Iowa Constitution; and the 5th and 14th Amendments, U.S. Constitution. On each contention the decision was adverse to appellant. On this appeal it is asserted to be violative of Article I, Section 17, and Article I, Section 6, Iowa Constitution, and the 14th Amendment, U.S. Constitution. Thus it is apparent that as to Section 17, Article I, Iowa Constitution, and the 14th Amendment, U.S. Constitution,...