State v. Frey
| Decision Date | 23 October 1928 |
| Docket Number | 39274 |
| Citation | 221 N.W. 445,206 Iowa 981 |
| Parties | STATE OF IOWA, Appellee, v. ARTHUR FREY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Madison District Court.--W. S. COOPER, Judge.
The defendant was charged by an indictment consisting of two counts, in the first count of which he was charged with the crime of breaking and entering a granary, with the intent to commit larceny; and in the second count, he was charged with the crime of larceny from a building. The defendant entered a plea of not guilty. Trial to the court and a jury. Verdict of guilty upon both counts of the indictment. After the verdict the defendant filed motion in arrest of judgment, which was partially sustained and partially overruled, and the court pronounced judgment against the defendant upon the charge contained in the first count of the indictment. Both the defendant and the State appeal.--Affirmed on defendant's appeal; reversed as to State's appeal.
Affirmed on defendant's appeal; reversed on the State's appeal.
Opal Marquardt and C. A. Robbins, for appellant.
John Fletcher, Attorney-general, and Neill Garrett, Assistant Attorney-general, for appellee.
The first count of the indictment charges that the defendant, on or about the 29th of August, 1927, did break and enter into a building, to wit, a granary, in which goods and other valuable things, to wit, timothy seed, were kept for use, with the specific intent to then and there commit a public offense, to wit, the crime of larceny in a building, etc.
The second count of the indictment charges that the defendant, on or about the 29th day of August, 1927, did feloniously take, steal, and carry away from a building, to wit, a granary, seven bushels of timothy seed, of the value of $ 9.10, etc.
The location of the granary in each count is identical. The court submitted both counts of the indictment to the jury, submitting four forms of verdict, permitting said body to find the defendant guilty of the offense charged in each count of the indictment, and also permitting the jury to find the defendant not guilty of the offenses so charged. The jury returned a verdict of the crime of breaking and entering, and another verdict of guilty of the crime of larceny from a building, both as charged in the indictment, and found the value of the property stolen to be $ 9.10.
After the aforesaid verdicts were returned, the defendant filed a motion in arrest of judgment, based upon the ground, as alleged therein, that the indictment contains two separate and distinct charges: one for breaking and entering a building, with the intent to commit larceny therein, and the other for larceny from a building. The court overruled said motion in arrest of judgment as to Count 1, and sustained the same as to Count 2 of the indictment. Thereafter, the defendant filed motion for new trial, and renewed his motion in arrest of judgment. And while it is apparent that the court did, in fact, overrule the same, and pronounce judgment upon the defendant, committing him to the reformatory on the verdict of guilty of the crime charged in Count 1 of the indictment, the record of what occurred at that time reads as follows:
The trial court, by mistake, wrote in the calendar the word "sustained," where he intended the word "overruled;" and this error occurs both in the entry on the judge's calendar and in the court record, as made therefrom. When this error was ascertained, the State filed a motion, asking the court to correct the record by substituting the word "overruled" for the word "sustained;" and the court set the matter down for hearing, and the defendant was served with notice thereof, as prescribed by the court. The defendant filed resistance to the aforesaid motion; and upon hearing had to the court at a subsequent term, the defendant being present at said hearing, the court found that, at the time of the presentation of the motions for new trial and in arrest of judgment, the same were, in fact, overruled by the court, and announcement of said ruling made; and that, in making the entry in the judge's calendar, it was the court's intention to make said entry show that the motion for new trial and further motion in arrest of judgment were overruled; but that, through mistake, the court wrote the word "sustained" in the court calendar, instead of the word "overruled;" that the record of said proceedings was copied from the court calendar. It was ordered that said record be corrected as of the date November 5, 1927, for the purpose of making the record conform to the actual ruling of the court as pronounced at that time.
If the correction had been made during the same term of court at which the ruling was made, no question could be raised as to the power of the court to make the correction. See Section 10801, Code of 1927. But entries made and signed at a previous term can be altered, to correct an evident mistake. Section 10803 of the Code. The mistake appearing is an evident mistake, within the meaning of the aforesaid statute; for the court pronounced judgment committing the defendant to the reformatory, and it is apparent, or evident, that such commitment would not have been made, had he sustained the motion for new trial and in arrest of judgment. It is provided by Section 12857 of the Code that the lower court may make any necessary orders to secure a perfect record, upon a showing by affidavit or otherwise, and upon such notice as it may prescribe. The courts have inherent power to make orders nunc pro tunc, and to modify their records so as to make them speak the truth. Hofacre v. City of Monticello, 128 Iowa 239, 103 N.W. 488; Puckett v. Gunther, 137 Iowa 647, 114 N.W. 34; Puckett v. Guenther, 142 Iowa 35, 120 N.W. 123; Dowling v. Webster County, 154 Iowa 603, 134 N.W. 870; Lambert v. Rice, 143 Iowa 70, 120 N.W. 96; Snyder v. Fahey, 183 Iowa 1118, 168 N.W. 117; Fuller & Co. v. Stebbins, 49 Iowa 376. In Snyder v. Fahey, supra, we said:
We reach the conclusion that the court had the power to make the nunc pro tunc entry as aforesaid. Thus it appears that the motion for new trial and renewed motion in arrest of judgment, which were submitted to the court on November 5, 1927, were overruled.
The defendant's motion in arrest of judgment is based upon the claim that the indictment charges two separate and distinct offenses, to wit, breaking and entering, and larceny from a building,--in other words, that it is bad for duplicity.
Our statutory law provides that, with certain exceptions hereafter to be noted, the indictment must charge but one offense. See Section 13737 of the Code. One exception is found in Section 13738 of the Code, which provides:
"In case of compound offenses where in the same transaction more than one offense has been committed, the indictment may charge the several offenses and the defendant may be convicted of any offense included therein."
Burglary, or breaking and entering, is not a compound offense which includes larceny. State v. McFarland, 49 Iowa 99; State v. Ridley & Johnson, 48 Iowa 370; State v. Rhodes, 48 Iowa 702. Therefore, there was no warrant for charging both breaking and entering and larceny in the same indictment, by reason of the provisions of the section just quoted.
Another exception to Section 13737 of the Code, hereinbefore referred to, is the statute which was enacted by the forty-second general assembly, now found in Section 13738-b1 of the Code of 1927, and which provides:
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