State v. Girdler

• Decision Date: 03 May 1960
• Docket Number: No. 49988.,49988.
• Citation: 102 N.W.2d 880
• Parties: STATE of Iowa, Appellee, v. Elun GIRDLER, Jr., Appellant.
• Court: Iowa Supreme Court

102 N.W.2d 880

STATE of Iowa, Appellee, v. Elun GIRDLER, Jr., Appellant.

No. 49988.

Supreme Court of Iowa.

May 3, 1960.

Carroll E. Cutting, Decorah, for appellant.

Norman A. Erbe, Atty. Gen. of Iowa, Marion R. Neely, Asst. Atty. Gen., and Robert N. Johnson, Lee County Atty., Fort Madison, for appellee.

THOMPSON, Justice.

This is one of three cases arising out of charges filed against the defendant, arising out of a prison break at the Iowa State Penitentiary on June 3, 1959. The first charge, assault with intent to commit a felony and being a habitual criminal, was tried to a jury with verdict of guilty of the assault as charged, and with special interrogatories finding he had been twice previously convicted, sentenced, and committed, for crimes as defined in Code Section 747.5, I.C.A. The court thereupon sentenced him to imprisonment in the penitentiary for not to exceed twenty-five years. Appeal was taken in this case, our Number 49919, 102 N.W.2d 872, and an affirming opinion is filed therein on this same date, May 3, 1960.

The second case involved a charge of larceny of a motor vehicle, with trial to a jury and verdict of guilty. Sentence of not to exceed ten years was imposed. Appeal was also taken, our number 49920, 102 N.W.2d 877, and an affirming opinion is filed on the same date.

The case under consideration here is our Number 49988. Upon plea of guilty and judgment thereon, the court sentenced the defendant to confinement in the penitentiary for a term of not to exceed five years. From this he appeals.

I. After arraignment and plea of not guilty, an amendment adding names of witnesses and charging the defendant with being a habitual criminal was permitted by the trial court. The defendant thereafter withdrew his plea of guilty and filed a demurrer. This was denied by the trial court. His plea of guilty was to the crime of escape only; the added allegation of being a habitual criminal was disregarded. We assume this was for the reason that he had at that time been found guilty of assault with intent to commit a felony and being a habitual criminal, in No. 49919. In any event the habitual criminal element is not before us here except as it formed some of the grounds for the demurrer which was overruled. The demurrer was identical with that discussed in the opinion in No. 49919, and all contentions made here are answered in that case. We held adversely to the defendant there, and repeat our holding here without further comment.

II. We...