State v. Gebhart, 51578

Decision Date04 May 1965
Docket NumberNo. 51578,51578
Citation134 N.W.2d 906,257 Iowa 843
PartiesSTATE of Iowa, Appellee, v. William GEBHART, Appellant.
CourtIowa Supreme Court

Mead & Scieszinski, Wilton Junction, for appellant.

Lawrence F. Scalise, Atty. Gen., of Iowa, Don R. Bennett, Asst. Atty. Gen., Garry D. Woodward, Sp. Asst. County Atty., and Harvey G. Allbee, Jr., Muscatine County Atty., for appellee.

THOMPSON, Justice.

The poet who wrote 'Grow old along with me, the best is yet to be' surely did not have the defendant in the instant case in mind. At 91, an age when the few who get that far are thought to have reached a time of peace and wisdom, he was accused of the wrongful killing of his wife, Sarah Gebhart, and her sister, Anna Yarbough. Each woman was killed by several gunshot wounds; and since there was no one present at the time of the killings except the two victims and the defendant, and he admitted the shootings immediately afterwards, the impression arises that he had somewhat to do with them. His substantial defense, not material to the questions raised on this appeal, was that he killed in self-defense.

This appeal is concerned with the conviction of the defendant on the plea of guilty of the crime of manslaughter in the killing of Sarah Gebhart. As we understand them, the contentions are two;--first, that although he had been held to the grand jury on March 31, 1964, after hearing on preliminary information, he was not indicted within thirty days thereafter, and so was entitled to his discharge under section 795.1 of the code of 1962, as amended by chapter 332, § 1 of the acts of the 60th General Assembly, I.C.A.; and second, that the dismissal of the charge first filed, on which he was held to the grand jury, was a final and complete dismissal of the charge and precluded the state from any further prosecution. A discussion of these necessitates a statement of the procedures involved.

The offense was alleged to have been committed on March 26, 1964. On March 27 next a preliminary information charging the defendant with the murder of Sarah Gebhart was filed in justice court. On March 31, after hearing, he was held to await the action of the Muscatine County grand jury at its next session. On April 30 the then presiding judge, Honorable M. L. Sutton, held an informal hearing at which he called the attention of the state and the defendant to section 795.1, as amended, supra. This was the thirtieth day after the defendant had been held. No indictment or county attorney's information had been then filed. On May 1 next a true information was filed by the county attorney, charging the defendant with the crime of murder. This information was approved by the court, and ordered filed. At the same time the first information was dismissed on motion of the state. On May 12 the defendant filed a motion to dismiss the information of the grounds that it was filed more than thirty days after he had been held on the first charge, contrary to section 795.1; and because the original charge had been dismissed. This motion was denied by the court on May 23. On June 20 next the court likewise denied a demurrer filed by the defendant which also raised the question of the true information being filed more than thirty days after the defendant had been held to the grand jury under the original charge. On August 3 the defendant entered his plea of guilty to the included offense of manslaughter, which plea was accepted by the court, and sentence was imposed in accordance with the statute. This was apparently after the defendant had been tried on the charge of murdering Anna Yarbough, with a jury verdict therein of guilty of manslaughter. At all times material the defendant was represented by the same counsel who appear for him in this court. The sentence in each case was that the defendant be confined in the penitentiary for a term not exceeding eight years, and pay a fine of $500.00, all as provided by section 690.10.

I. It is essential to set out section 795.1 as it now appears in the law. 795.1: 'When a person is held to answer for a public offense, if an indictment be not found against him at the next regular term of the court at which he is held to answer or within thirty days, whichever first occurs, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown. An accused not admitted to bail and unrepresented by legal counsel shall not be deemed to have waived his privilege of dismissal or be held to make demand or request to enforce a guarantee of speedy trial, and the court on its own motion shall carry out the provisions of this Act as to dismissal.' The italicized parts are so marked to show the additions to the statute made by the 60th General Assembly.

It is the contention of the defendant that since he was held to answer for an indictable offense, and no indictment was returned against him within thirty days, he is entitled to be discharged; that the state has lost its right to prosecute him for the offense charged in the true information and the court had no jurisdiction to approve the information or to permit any further proceedings to be had. We are slow to believe that the legislature, in enacting the statute, intended to exonerate an offender from the consequences of his crime because of a failure of the prosecution to proceed against him within the time limited. Without doubt, the intent of the act is to insure a speedy trial, in accordance with the right guaranteed by the Iowa constitution. We have held, in a series of cases, that sections 795.1 and 795.2 are intended to implement Article 1, section 10, of our bill of rights, I.C.A. We have also held that a demand for a speedy trial must be made by a defendant; otherwise he will be deemed to have waived this right. State v. Long, Iowa, 130 N.W.2d 663, 665; State v. Jackson, 252 Iowa 671, 674, 108 N.W.2d 62, 64; McCandless v. District Court, 245 Iowa 599, 604, 605, 61 N.W.2d 674, 677; Pines v. District Court, 233 Iowa 1284, 1293, 10 N.W.2d 574, 579.

It is true these cases were concerned with the provisions of section 795.2 dealing with procedures after indictment. In amending section 795.1 the legislature was attempting to remedy a mischief that did not exist. But in so doing, it demonstrated its intent that one who is represented by counsel was not the primary object of its concern.

It may be that there is a difference between the situation of one who has been indicted, and does not demand a speedy trial, under section 795.2, and another who has been charged and held without indictment, with whose situation section 795.1 is concerned. The indicted defendant knows that he must face a trial, and if he wants quick action, under our holdings, must make his demand therefor in order to make section 795.2 operative, with the present exception of those held in jail without counsel. But the defendant who has not been indicted may well be thought not to be required to make a demand that he be so charged. We have never so held; our cases deal with the situation under section 795.2. The legislature, in amending section 795.1 to provide that one not indicted within thirty days or at the next regular term of court will not be held to have waived his rights under the section if he is held in jail and is not represented by counsel, was evidently fleeing when no man pursued; it was attempting to correct an evil that did not exist. But by the amendment it has cast some doubt upon the question of whether a demand for indictment must now be made by one not admitted to bail and not represented by counsel. The statute, as worded after the amendment, seems to raise an implication that one who is not held in jail or is represented by counsel, must make such a demand, even during the period of thirty days or at the next regular term of the court, upon pain of a holding that he has waived his rights under the section.

Whether an accused who has been charged but not indicted must now take some affirmative steps to insist upon a speedy accusation we do not find it necessary to determine upon this appeal. There was ample ground for the trial court's ruling refusing to dismiss the information filed one day late, in that good cause, within the meaning of the statute, appears. At the hearing before Judge Sutton on April 30, this appears:

'THE COURT: And at that time indicated that you would prefer that this matter not be rapidly pushed, and in fact would prefer to not have it tried until probably the September term of court. Is that correct?

'MR. MEAD: I think your statement there needs just a little clarification. The latter part of it is true; but I didn't indicate any willingness...

To continue reading

Request your trial
16 cases
  • State v. Williams
    • United States
    • Iowa Supreme Court
    • May 25, 2017
    ...under the United States and Iowa Constitutions. U.S. Const. amend. VI ; Iowa Const. art. I, § 10 ; see State v. Gebhart , 257 Iowa 843, 847, 134 N.W.2d 906, 908 (1965), overruled on other grounds by State v. Johnson , 217 N.W.2d 609, 612 (Iowa 1974), and State v. Gorham , 206 N.W.2d 908, 91......
  • State v. Allnutt
    • United States
    • Iowa Supreme Court
    • February 6, 1968
    ...have been sustained. Section 795.2, Code of Iowa, implements Article I, Section 10, of the Constitution of Iowa. State v. Gebhart, 257 Iowa 843, 847, 134 N.W.2d 906, 908. Defendant's right to a speedy trial is also guaranteed by Amendment 6 to the Constitution of the United States, which wa......
  • Powers v. Hatcher
    • United States
    • Iowa Supreme Court
    • May 4, 1965
    ... ... bearing on the trip taken by plaintiff and defendant showed they were directed by the state office to attend the meeting at Nevada and that plaintiff as chairman had at different times ... ...
  • State v. Deases, 90-414
    • United States
    • Iowa Court of Appeals
    • June 25, 1991
    ...are for the protection of the rights of an accused by implementing constitutional guarantees of a speedy trial. State v. Gebhart, 257 Iowa 843, 847, 134 N.W.2d 906, 909 (1965). These rules, while meant to shield the defendant from unjust delays, are not intended to be a device by which, thr......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT