State v. District Court In and For Delaware County, 50544

• Decision Date: 03 April 1962
• Docket Number: No. 50544,50544
• Citation: 253 Iowa 903,114 N.W.2d 317
• Parties: STATE of Iowa, Petitioner, v. DISTRICT COURT of Iowa IN AND FOR DELAWARE COUNTY, Honorable Blair C. Wood, Judge, Respondent.
• Court: Iowa Supreme Court

Page 317

114 N.W.2d 317

253 Iowa 903

STATE of Iowa, Petitioner, v.DISTRICT COURT of Iowa IN AND FOR DELAWARE COUNTY, Honorable Blair C. Wood, Judge, Respondent.

No. 50544.

Supreme Court of Iowa.

April 3, 1962.

Evan Hultman, Atty. Gen., John H. Allen, Asst. Atty. Gen., and Wm. Stuart Charlton, County Atty., for petitioner.

Swift & Swift, Manchester, for respondent.

THOMPSON, Justice.

The defendant in a criminal case pending in the Delaware District Court made application to compelthe state's witnesses, as listed on the county attorney's information charging the crime, to answer certain oral interrogatories to be propounded to them under the provisions of Division VII, particularly rules 140-148 inc., Iowa Rules of Civil Procedure,58 I.C.A.The witnesses appeared in answer to subpoenaes, but on advice of the county attorney refused to answer.The respondentcourt, through the respondent presiding judge, ordered them to answer, and the state brings certiorari, alleging the order was illegal and in excess of the jurisdiction of the court.

I.It is evident the defendant seeks to take the depositions of the state's witnesses for the purpose of discovery; and the controversy concerns his right so to do.The enabling act of the Rules of Civil Procedure, Code Section 684.18, give the supreme court the power to 'prescribe all rules of pleading, practice and procedure * * * for all proceedings of a civil nature * * *'.Prior to 1957 there was no discovery procedure in Iowa either by statute or rules.In that year, however, the supreme court adopted, and the legislature by failing to veto ratified, amendments to the former deposition procedures authorizing the taking of depositions for the purpose of discovery as well as for evidence.So far as material these rules are the present Rules of Civil Procedure number 140-148, inclusive.It is these rules the defendant, and the respondentcourt, think authorize the taking of depositions of the listed witnesses for the state for the purpose of discovery.

II.Two material principles are established by our decisions.In State v. Addison, 250 Iowa 712, 716, 95 N.W.2d 744, 747, we said: 'Rules of Civil Procedure have no application to criminal cases unless a statute makes them applicable.'We have also held that generally the Rules of Civil Procedure have the force and effect of statute law.Hubbard v. Marsh, 239 Iowa 472, 474, 32 N.W.2d 67, 68, and citations.The respondent contends that our rules governing discovery depositions apply to criminal cases, 'because a statute makes them applicable'.

III.Here the respondent cites and relies upon Section 781.10, Code of 1958, I.C.A., which has been a part of our law since the Revision of 1860, there found as Section 4960.We set out the statute herewith.'Depositions.A defendant in a criminal case, either after preliminary information, indictment, or information, may examine witnesses conditionally or on notice or commission, in the same manner and with like effect as in civil actions.'

As has been pointed out, until 1957we had no provision in our laws for discovery, either by interrogatories or depositions.Depositions until that time were for the purpose of procuring evidence.Section 781.10, supra, meant that depositions in criminal cases could be taken in 'the same manner', which evidently meant by the same technical procedures, and 'with like effect', which referred to their use as evidence, as in civil cases.The respondent held that it is Section 781.10 which makes the discovery procedures applicable to criminal cases.

IV.Without doubt Section 781.10 is a general reference statute.And it must be conceded that when a statute adopts the general law on a particular subject rather than a specific statute, it adopts not only the existing law but later legislation on the subject.50 Am.Jur., Statutes, Sec. 39, page 59;82 C.J.S.Statutes§ 370, p. 848.If this were all that appears, we should be compelled to say that the amendments to the deposition statutes of 1957 make the discovery procedures applicable to criminal cases.

But there is an exception to the general rule stated above.As in all cases of statutory construction we must search for the intent of the legislature.Spencer Publishing Company v. City of Spencer, 250 Iowa 47, 51, 92 N.W.2d 633, 635.If it sufficiently appears that there was no intent to make the discovery rules applicable in criminal causes--perhaps it is more nearly accurate to say if a 'contrary intent' affirmatively appears--we should follow and apply that intent.50 Am.Jur., Statutes, supra, states the exception thus: 'so far at least as they are consistent with the adopting statute'; and in 82 C.J.S. Statutessupra, it is said 'at least as far as the changes are consistent with the purpose of the adopting statute.'Section 4.3 of the Code of 1958, I.C.A. is quoted: 'References to other statutes.Any statute which adopts by reference the whole or a portion of another statute of this state shall be construed to include subsequent amendments of the statute or the portion thereof so adopted by reference unless a contrary intent is expressed.'

But this statute has no bearing on the situation before us.The rule when an adopting statute adopts another statute, rather than the general law on a subject, is thus stated in 50 Am.Jur., Statutes, Sec. 39, page 58: 'It is a general rule that when a statute adopts a part or all of another statute, domestic or foreign, general or local, by a specific and descriptive reference thereto, the adoption takes the statute as it exists at that time, and does not include subsequent additions or modifications of the adopted statute, where it is not expressly so declared.The subsequent amendment or repeal of the adopted statute is not within the terms of, and has no effect upon, the adopting statute, where the latter statute is not also amended or repealed expressly or by necessary implication. * * *.'This statute, Sec. 4.3, supra, refers only to adopting statutes which adopt other statutes.It has no relevance to an adopting statute which adopts the general law, such as we have here, except as it makes the same rule apply.Now, whether the adopting statute adopts the general law or a specific statute, the rule is that it applies to later amendments or changes unless a contrary intent or inconsistency appears.Since we have under consideration an adopting statute which adopts the general law, we direct our attention to the question whether the rule of construction that it also adopts later amendments or changes applies, or whether such inconsistencies are shown in the later amendments that we must say an intent not to adopt the discovery deposition procedure appears.

V.We think a contrary intent or inconsistency may be expressed either in the general reference statute, the adopting statute, or in the adopted statute or statutes.Thus, the legislature may in the adopting statute express its intent that it does not apply in certain instances; or in a later amendment to the adopted statute it may express such intent.If in the amendments of 1957 it had said definitely that they apply only to civil procedures or in other clear terms had made its intent that criminal cases are excluded from the operation of the rules, it would have been clearly within its powers, and it could not be fairly contended that Section 781.10 gives the right of discovery now claimed, and granted here by the respondent.As the Minnesota Supreme Court said in discussing an identical contention in State v. Axilrod, 248 Minn. 204, 79 N.W.2d 677, 681, cert. den.353 U.S. 938, 77 S.Ct. 815, 1 L.Ed.2d 760: 'Regardless of existing statutes, there is nothing to prevent the legislature from subsequently enacting laws to apply exclusively to procedure in civil cases or to authorize the promulgation of rules of procedure exclusively for civil cases.'

VI.There is a measure of plausibility in the contention that Section 781.10 makes the discovery procedures applicable in criminal cases.But an analysis of the statutes and rules makes evident the intent of the legislature that the discovery deposition procedure applies only to civil cases.It is true the legislature did not express this intent in so many words; but there are many indicia which can lead to no other conclusion.We gather the intent of the legislature from the entire act; and there are so many inconsistencies with an intent to bring the discovery deposition procedure within the purview of the adopting act that we must conclude no such intent was present.We shall point out some of these, keeping in mind that the rules are in effect statutes.

Rule 140 is quoted: 'Depositions Generally--Stipulation.

'Depositions shall be governed wholly by these rules, but may be differently taken in any respect if that be in accord with the written stipulation of the parties.Subject to the restrictions in rule 141, a party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action, or for both purposes.As amended 1957.'It will be noted that this permits the taking of the testimony of any person, 'including a party', by deposition * * * 'for the purpose of discovery'.This flies in the face of the Fifth Amendment to the Constitution of the United States and of our own Code Section 781.12, which provides a defendant in a criminal proceeding may not be called as a witness by the state.A defendant in a criminal case is certainly a 'party'.It will not answer to say that this provision of Rule 140 could be ignored; we are here searching for the legislative intent.

Again we find Rule 141(c), which says: 'Except where the action involves an interest in real estate, depositions for discovery may not be taken where the amount in controversy as shown by the pleadings is less than one thousand dollars, unless leave of court...