State v. Grimmell

• Decision Date: 19 December 1901
• Citation: State v. Grimmell, 116 Iowa 596, 88 N.W. 342 (Iowa 1901)
• Parties: STATE v. GRIMMELL.
• Court: Iowa Supreme Court

116 Iowa 596

88 N.W. 342

STATE

v.GRIMMELL.

Supreme Court of Iowa.

Dec. 19, 1901.

Appeal from district court, Greene county; S. M. Elwood, Judge.

This is an appeal from certain rulings of the trial court in the above cause, wherein defendant was accused of the crime of murder in the second degree, perpetrated, as is alleged, in an attempt to produce a miscarriage.A verdict of not guilty was directed, and the state appeals.Reversed.Chas. W. Mullan, Atty. Gen., Chas. A. Van Vleck, Asst. Atty. Gen., and E. G. Albert, Co. Atty., for the State.

Salinger & Korte and Rose & Henderson, for appellee.

DEEMER, J.

The notice of appeal was signed by E. G. Albert, county attorney; and it is argued that he had no authority to take the appeal, in the absence of authority from the board of supervisors of Greene county, and that, even with this authority, he had no right to take the appeal.The contention is that the attorney general alone has the right to take and perfect an appeal in a criminal case.Code, § 5448, provides that either the state or the defendant may appeal in a criminal case;section 5449, that the appeal is perfected by the party or his attorney serving notice on the adverse party, or his attorney of record, of the taking of the appeal; and section 301 makes it the duty of the county attorney to appear for the state and county in all cases in the courts of his county to which the state or county is a party.He is also required to notify the attorney general of every criminal case appealedto the supreme court, and to prepare and deliver to him a prepared abstract of the case.Section 208 makes it the duty of the attorney general to prosecute and defend all cases in the supreme court in which the state is a party or is interested.Manifestly, the attorney general has nothing to do with a criminal case until it reaches this court.While in the district court the county attorney has sole charge of it, and by section 301 the county attorney is expressly required to furnish the attorney general with an abstract in all cases appealed to the supreme court.This clearly indicates that the county attorney, and he alone, may give notice of appeal in a criminal case.We have many times held that when defendant appeals he must give notice to the county attorney, and there is no more statutory authority for this than there is for the county attorney giving notice when the state is the appellant.No doubt, when the case is appealed the attorney general obtains full control of it, but until the appeal is perfected he has no authority in the matter.State v. Fleming, 13 Iowa, 443.The board of supervisors has no control over appeals in criminal cases brought within the county, and the county attorney is not required to consult it with reference to the taking of an appeal.The motion to dismiss is therefore overruled.

2.It is claimed by the state that the crime was the result of an abortion performed by defendant upon one Mrs. Ed. Sherman.After introducing evidence tending to show the defendant performed an abortion, and that it was not necessary to save life, the state offered one Dr. Enfield as a witness, and proposed to prove by him the following state of facts: First.That from his experience, and the teachings of the recognized medical authorities, there is no occasion on which it is right or proper to use instruments or a stick in the vagina or private parts or uterus of a woman, where the difficulty or condition under which she is then laboring is a case of amenorrhea or stoppage of the menstrual flow caused by a cold.Second.That, on or about Wednesday of the week in which Mrs. Ed. Sherman died,--she being the woman on whom it is alleged the defendant produced the abortion as charged in the indictment herein,--he was called by the husband of the deceased woman, Ed. Sherman, to make an examination of the said Mrs. Ed. Sherman, and found the following conditions: That she was then suffering from a virulent type of puerperal infection, to wit, septicæmia, which in the condition here found is purely and only a wound infection generated by poison germs introduced from external sources into an open wound; that such germs were carried in by instruments, or by the examining finger of the person in charge; that said septicæmia was of a virulent type, and had reached the point where it had affected the whole system, she having then a high temperature, and being physically very weak; that the private parts and the whole pelvic region and contents were highly inflamed and...