State v. Finnegan

• Decision Date: 14 October 1952
• Docket Number: No. 47938,47938
• Citation: 55 N.W.2d 223,244 Iowa 166
• Parties: STATE v. FINNEGAN.
• Court: Iowa Supreme Court

Page 223

55 N.W.2d 223

244 Iowa 166

STATE v. FINNEGAN.

No. 47938.

Supreme Court of Iowa.

Oct. 14, 1952.

Rehearing Denied Dec. 19, 1952.

Raymond Rosenberg, of Des Moines, and John Donahey, of Panora, for appellant.

Robert L. Larson, Atty. Gen., Raphael R. R. Dvorak, Asst. Atty. Gen., and Robert Y. Taylor, of Guthrie Center, County Atty., for appellee.

GARFIELD, Justice.

The indictment charged defendant with the third offense of operating a motor vehicle while intoxicated as defined in section 321.281, Code 1950, I.C.A. However, the indictment alleged three prior convictions, not merely two, the first on December 4, 1936, all in Guthrie county.

Defendant demurred to the indictment. Only ground of the demurrer necessary to mention was in substance that since three previous convictions were alleged defendant was actually charged with a fourth offense and section 321.281, Code 1950, I.C.A. provided no punishment for any offense higher than the third.

After the demurrer was filed the court permitted the state, on its motion over defendant's objection, to amend the indictment by striking the allegation pertaining to the first previous conviction on December 4, 1936. Defendant then demurred to the indictment as amended on the ground, in substance, it appears therefrom, together with the minutes attached thereto, that defendant was still charged with a fourth offense not covered by section 321.281. The demurrers were overruled.

Upon trial the jury returned a verdict of guilty of a second offense. From judgment and sentence on the verdict defendant has appealed. Aside from a ruling on a question of evidence complaint is made of the overruling of the demurrers to the indictment and the permission given to amend it. Defendant argues that both the original indictment and the amended one really charge a fourth offense of 'drunken driving' for which Code section 321.281, I.C.A. provided no punishment.

It is true section 321.281, prior to its amendment by the 54th General Assembly in 1951, made no express provision for punishment of any offense higher than the third. At the time of the principal offense here charged, § 321.281, so far as now material, stated:

'Whoever, while in an intoxicated condition * * * operates a motor vehicle * * * shall, upon conviction * * * be punished, for the first offense by * * *; for the second offense by * * *; and for a third offense by imprisonment in the penitentiary for a period not to exceed three years.'

Chapter 118, Acts 54th General Assembly, amended the above statute by inserting after the words 'third offense' the words 'and each offense thereafter'. However, this amendment was passed after the main offense here charged was committed and is not applicable to the present case.

I. Since defendant was not tried under the original indictment we might decline to consider whether it was demurrable on the ground asserted by defendant. If the amendment to the indictment was rightly permitted and the amended indictment under which defendant was tried was not subject to the demurrer thereto, defendant may not complain of the ruling on his demurrer to the original indictment because he was not prejudiced by it. State v. Kiefer, 183 Iowa 319, 331, 163 N.W. 698, Ladd, J., holds defendant was not prejudiced by an unauthorized amendment to an indictment where he was not tried thereunder.

We are clear, however, that the original indictment was not demurrable on the ground urged by defendant. As previously stated, the indictment charged only a third offense 'as defined in section 321.281 .' Such an offense was clearly punishable by section 321.281 as it then stood. It does not follow from the fact the indictment went on to allege unnecessarily three prior convictions rather than two that defendant was charged with a fourth offense for which the statute provided no punishment.

Code section 773.3, I.C.A. states in part that an indictment may charge an offense by using the name given it by statute and 'may refer to * * * any statute creating the crime charged therein, and in determining the validity or sufficiency of such indictment regard shall be had to such reference.' The charging part of the indictment used the name 'third offense' which is found in the statute and referred to section 321.281 which creates the crime charged.

If defendant had been tried under the original indictment, the allegation of the first prior conviction which was stricken by the amendment might have been disregarded as surplusage in accordance with Code section 773.30, I.C.A. which provides, 'Any allegation unnecessary under existing law * * * may, if contained in an indictment, be disregarded as surplusage.' See in this connection State v. Murray, 222 Iowa 925, 931, 270 N.W. 355; State v. Anderson, 125 Iowa 501, 101 N.W. 201; State v. Ansaleme, 15 Iowa 44, 46; 42 C.J.S., Indictments and Informations, §§ 155a, 155b(3), pp. 1086, 1091; 27 Am.Jur., Indictments and Informations, section 109, page 670 ('and a fact stated may be rejected as surplusage if it is merely in aggravation, so that it may be stricken out and yet leave the offense fully described.'). See also State v. Briggs, 68 Iowa 416, 27 N.W. 358.

42 C.J.S., Indictments and Informations, § 222h, states 'An indictment * * * is not demurrable * * * for the presence of surplusage * * *.'

Our conclusion that the original indictment was not rendered invalid by alleging three prior convictions rather than two finds support in Code section 773.29, I.C.A. which states: 'No indictment shall be invalid * * * by reason of any repugnant allegation contained therein; provided that an offense is charged in accordance with the provisions of section 773.3.' We do not mean to say the allegation of three prior convictions was in fact repugnant. But if it were, the indictment would not be invalid because thereof.

Nothing in this opinion is to be taken as an approval of the implication running through defendant's argument that one who had been convicted more than twice of 'drunken driving' was, prior to the amendment of Code section 321.281 in 1951, I.C.A. immune from punishment for a subsequent offense except perhaps as a first offender. The amendment removes any possible doubt on that point as to offenses committed after it took effect and makes unnecessary any extended discussion of the meaning of the statute before it was amended.

However, it seems absurd to contend in effect that if one had previously been convicted more than twice he had not been convicted twice so as to be punishable as a third offender. We think one who had three prior convictions necessarily had two such convictions just as the greater includes the lesser in mathematics and, upon committing a subsequent offense, was punishable as a third offender. Of course section 321.281 provided no greater punishment for a subsequent offense higher than the third.

It may be well at this point to call attention to our holding in State v. Barlow, 242 Iowa 714, 721, 46 N.W.2d 725, 729, that Code section 321.281, I.C.A., merely provides increased punishment for second and third offenses and failure to prove the prior convictions as charged does not prevent conviction for the principal offense.

II. What we have said is really determinative of the appeal except for the question of evidence presented. However, we will say we have no doubt of the propriety of permitting the amendment to the indictment. As above explained it merely eliminated an unnecessary allegation which without the amendment could have been disregarded as surplusage. Accordingly defendant was not prejudiced by the withdrawal of the allegation of the first prior conviction.

The law seems to be plain that an indictment may properly be amended to eliminate surplusage. State v. Gardiner 205 Iowa 30, 33, 215 N.W. 758; 42 C.J.S., Indictments and Informations, § 240, page 1256 ('Surplusage may be stricken by amendment, * * *'). See also State v. Bamsey, 208 Iowa 802, 807, 226 N.W. 57.

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