State v. Dunley

• Decision Date: 06 February 1940
• Docket Number: 44996.
• Citation: 290 N.W. 41,227 Iowa 1085
• Parties: STATE v. DUNLEY.
• Court: Iowa Supreme Court

290 N.W. 41

227 Iowa 1085

STATE v. DUNLEY.

No. 44996.

Supreme Court of Iowa.

February 6, 1940

Appeal from District Court, Lee County; John M. Rankin, Judge.

Defendant was indicted, convicted and sentenced for selling stock in violation of the Iowa Securities Act.

Affirmed.

Edward L. O'Connor, of Des Moines, and Phil J. Roan, of Fort Madison, for appellant.

Fred D. Everett, Atty. Gen., Jens Grothe, Asst. Atty. Gen., and R N. Johnson, Jr., Co. Atty., of Fort Madison, for appellee.

MILLER, Justice.

On September 22, 1936, an indictment was returned against the defendant, together with one Don L. Harris, finding that they did, on April 13, 1936, " without a license and with intent to evade the provisions of Chapter 393-C1 of the 1935 Code knowingly sell Best Incinerator stock to Dr. I. F Thompson in violation of the Iowa Securities Act." A motion for severance having been sustained, defendant was tried alone, was convicted and on May 4, 1939, was sentenced for a term of not to exceed five years in the state penitentiary at Fort Madison. On the same day, May 4, 1939 notice of appeal was served upon the county attorney and filed with the clerk of the district court.

I.

At the outset, we are faced with the attorney general's contention that the appeal should be dismissed for failure to comply with Rule 32 of this court. The record, upon which the attorney general claims the case should be dismissed, is as follows. Following the perfection of the appeal on May 4, 1939, a clerk's transcript of the record was filed in this court on July 21, and on September 2 notice was given to the attorney general pursuant to Rule 32 that the appellant elected to submit the case on printed abstract and brief and argument. On September 27, a motion to dismiss and appellant's resistance thereto were filed. The same were submitted to this court and the motion to dismiss was overruled on October 17. On December 7, appellant filed an abstract and a brief and argument. On December 29, the attorney general filed a motion to reconsider the ruling on the motion to dismiss and appellant filed a resistance thereto. The motion to reconsider was ordered submitted with the case. We find no merit in the contentions of the attorney general.

In the case of State v. McGlasson, 86 Iowa 44, 45, 52 N.W. 226, this court undertook to construe the statutes which are controlling here. In view of the fact that the section numbers of the Code of 1873 differ from those contained in the 1935 Code, we have inserted in parentheses the present section numbers, corresponding to those set forth in the following statement of this court in that case, to wit:

" Section 4524 (13997) of the Code provides, in substance, that an appeal in a criminal case shall be deemed taken when the notices required by section 4523 (13997) are filed in the office of the clerk of the court in which judgment was rendered, with evidence of the service thereof indorsed thereon or annexed thereto. Section 4525 (13998) provides that when an appeal is taken the clerk must, without unnecessary delay, make out, certify, and transmit to the clerk of this court a full and perfect transcript of all papers in the case on file in his office, except those returned by the examining magistrate. By section 4538 (14010) we are required, when an appeal is taken by the defendant in a criminal case from a judgment rendered against him, to examine the record, and, without regard to technical errors or defects which do not affect the substantial rights of the parties, render such a judgment on the record as the law demands. The statute is imperative, and hence we cannot, on motion, either affirm or dismiss the case, but must in all cases examine the record as required." (Italics supplied)

Our recent decision in the case of State v. Neville, Iowa, 288 N.W. 83, is an example of a reversal by us, pursuant to the mandate of this statute.

While some of our later decisions tend to cast some doubt upon the pronouncement, contained in State v. McGlasson, supra, a careful examination of them convinces us that, in addition to the fact that the case has never been expressly overruled, the decisions do not warrant us now holding that it has been overruled by implication. We are disposed to hold that the statement there made by us is still the law. Accordingly, when the clerk's transcript was filed in this court on July 21, 1939, it became our duty, pursuant to Section 14010 of the Code 1935, to examine said record and the case could not be dismissed or affirmed unless from such examination we were satisfied, without regard to technical errors or defects which do not affect the substantial rights of the parties, that the record sustains the conviction.

Under Rule 32 of this court,^[1] if the appellant desired to submit the case upon a printed abstract and brief and argument, he was required to serve a notice to that effect on the attorney general and file such notice before the date set for the submission. Such a notice was served and filed September 2, 1939; it was timely and continued the cause to the January, 1940 Term.

However, Rule 32 expressly provides that the requirements of Section 12847 of the Code apply to the filing of the abstract. This section requires that the abstract be filed within 120 days after the appeal is taken, unless additional time be granted by the court or a judge thereof. No additional time was so granted. When the abstract was filed on December 7, 1939, more than 120 days had transpired. Appellant had lost his right to file an abstract. This is clear from our statement in State v. Johns, 224 Iowa 487, 488, 275 N.W. 559, 560, to wit: " Appellant within the 120 days from the date of perfecting his appeal was granted an extension of time for filing abstract until August 1, 1937. No abstract was served or filed on or before August 1, 1937, and no further order was obtained prior to said date of August 1, 1937, authorizing further extension of time for filing the same. The rule requiring abstracts to be filed within 120 days from the date of perfecting the appeal is a statutory rule. Section 12847 of the Code. By Rule 32, as amended, when a defendant in a criminal case elects to present his appeal by means of printed abstract, brief, and argument, Code, § 12847, is made applicable. Hence, when no abstract was filed within the 120 days or within the period of the extended time, the right of the defendant appellant to have his case presented on printed abstract, brief, and argument was lost and is beyond redemption, and it is beyond the power of this court to revive or restore the same, and the only right left to the defendant appellant (if indeed it has not also been forfeited, a matter we do not determine), is the right provided by section 14010 of the Code, to have his case submitted on the clerk's transcript, and under the provisions of said section 14010 this court has examined such transcript, and, finding no error in the record, the judgment of the court below must be affirmed."

It will be noted that the above pronouncement, in addition to definitely determining that the right to file the abstract was lost, indicates that the right to file a printed brief and argument was also lost. However, under Rule 32, the brief and argument was not required until " at least 30 days before the day then assigned for the submission of said cause." On December 7, 1939, this cause was assigned for submission January 9, 1940. The argument herein was filed within the limit fixed by Rule 32. Also, the argument challenges only the action of the trial court in overruling a demurrer to the indictment. All of the record necessary to determine the contentions of appellant, contained in the printed brief and argument, is shown by the clerk's transcript. That record is still before us and, unless we were to overrule State v. McGlasson, supra, we are required to examine that record pursuant to Section 14010 of the Code, 1935. In such examination we must consider the contentions presented by appellant's argument in reference thereto.

In State v. Johns, supra, we do not determine whether appellant lost his right to have the transcript examined, and, as a matter of fact, did examine such record under the provisions of Section 14010. In State v. Blodgett, 143 Iowa 578, 589, 121 N.W. 685, 689, 21 Ann.Cas. 231, we reaffirmed the position taken by us in State v. McGlasson, supra, but held that the clerk's transcript was the only record which we were required to examine, stating as follows: " Section 5462 of the Code [1897] does require the Supreme Court to ‘ examine the record, without regard to technical errors or defects which do not affect the substantial rights of the parties and render such judgment on the record as the law demands.’ The record meant is that upon which the cause is submitted. This may be on transcript of all papers in the case on file save those returned by a committing magistrate and all entries in the record book. Section 5450, Code [1897]. This does not include the evidence . Harriman v. State, 2 G.Greene [270], 271.See State v. McGlasson, 86 Iowa [44] 47, 52 N.W. 226." (Italics supplied.) See also, State v. Owens, 109 Iowa 143, 80 N.W. 226; State v. Steidley, 135 Iowa 512, 515, 113 N.W. 333, 335; State v. Stoner, Iowa, 202 N.W. 609.In State v. Van Andel, 222 Iowa 932, 270 N.W. 420, we held that failure to file an abstract within 120 days or to secure an extension of time within such 120 days deprived appellant of the right to file an abstract, but in that case we examined the record, and finding no error, affirmed the case. We did not dismiss it.

In State v. Briggs, 207 Iowa 221, 223, 222 N.W. 552, we held that, where the assignments of error did not comply with the rules of this court, we...