State v. Fisher

• Decision Date: 01 November 1915
• Docket Number: No. 30204.,30204.
• Citation: 154 N.W. 587,172 Iowa 462
• Parties: STATE v. FISHER.
• Court: Iowa Supreme Court

172 Iowa 462

154 N.W. 587

STATE

v.FISHER.

No. 30204.

Supreme Court of Iowa.

Nov. 1, 1915.

Appeal from District Court, Cherokee County; W. D. Boies, Judge.

The defendant was charged with the crime of assault with intent to commit great bodily injury upon one Grace Johns. The case was tried to a jury, which returned a verdict of guilty of assault and battery. Sentence was pronounced that defendant be confined in jail for 30 days and pay the costs of prosecution, amounting to about $70. The defendant appeals. Affirmed.William Mulvaney, of Cherokee, for appellant.

George Cosson, Atty. Gen., and John Fletcher, Asst. Atty. Gen., for the State.

PRESTON, J.

A number of errors are assigned. They may be grouped under three heads: Error of the court in overruling the demurrer to the information; error in the admission of testimony; and error in the instructions. After defendant had waived preliminary examination before a magistrate an information was filed by the county attorney, duly verified. The following indorsements appear on the back of the information:

“On this the 16th day of January, 1914, being satisfied from the showing made herein that this cause should be prosecuted by information, the same is approved. W. D. Boies, Judge of the District Court.”

“This information duly filed in the District Court this the 16th day of January, 1914. F. J. Carpenter, Clerk of the District Court of Cherokee County, Iowa.”

“Bail is hereby affixed on the within information in the sum of $500.00. W. D. Boies, Judge of the Twenty-first Judicial District Court.”

The names of the witnesses are also indorsed, and attached to the information are the minutes of the testimony of two witnesses, also a notice of the testimony of other witnesses, together with the statement of what the state expected to prove, and giving their residence and occupation, served on the defendant personally on January 16, 1914. The information was not indorsed a true information as required by Code Supp. 1913, § 5239c (section 3, c. 188, Acts of the 34th G. A.).

[1] Defendant demurred to the information on the grounds that the information is not indorsed a true information and does not conform to the requirements of the laws of the state of Iowa, and does not charge assault with intent to inflict great bodily injury. The demurrer was overruled, and the defendant then waived arraignment and pleaded not guilty, and, as stated, was tried to a jury. The procedure for attacking the information because of the failure of the county attorney to indorse it a true information is prescribed in the statute itself (section 5239m, Code Supp. 1913), which provides, in substance, that a motion to set aside the information may be made on that ground. It seems to be the thought of counsel for the defendant that in the preparation of this information the provisions of law were not complied with, and therefore his demurrer should have been sustained on that ground.

[2][3][4] It is contended by the state that, under the general statutory rules of procedure, the defendant's demurrer could not have been sustained had the accusation been in the form of an indictment rather than that of an information. Section 5328 of the Code provides that a demurrer to an indictment will lie when it appears upon the face of the indictment that it does not substantially conform to the requirements of the Code, or that the indictment contains matter which, if true, would constitute a legal defense or bar to the prosecution. It would seem that the meaning of this section is that a demurrer will lie to an indictment if it does not substantially conform to the requirements of the Code in so far as its allegations fail to charge an offense, or if it contains allegationsin addition to charging a crime which would constitute, if proven, a complete defense, and we think the same rule ought to apply to the information filed by the county attorney. Section 5319 of the Code has a provision similar to the provision of Code Supp. 1913, § 5239c, and provides that a motion to set aside an indictment will lie when the indictment is not indorsed a true bill and the indorsement signed by the foreman of the grand jury. In the county attorney's information law the indorsement must be, “A true information,” and signed by the county attorney.

It has been held, under section 5328 of the Code, before set out, that questions as to the sufficiency of the statement of facts in the indictment to constitute the crime charged can be raised by demurrer, and the sufficiency of the indictment as a...