State v. Harbour
| Decision Date | 03 May 1949 |
| Docket Number | 47370. |
| Citation | 37 N.W.2d 290,240 Iowa 705 |
| Parties | STATE v. HARBOUR. |
| Court | Iowa Supreme Court |
D. W. Harris, of Bloomfield, and Herbert F. Box, of Ottumwa, for appellant.
Robert L. Larson, Atty. Gen., Don Hise, Asst. Atty Gen., and Paul Proctor, Co. Atty., of Bloomfield, for appellee.
February 14 1948, defendant entered a written plea of guilty to the crime of Operating a Motor Vehicle While Intoxicated and the Court (Judge Taylor) orally pronounced judgment thereon. February 21 said Court signed a typewritten judgment entry prepared by the county attorney which provided that defendant be fined $300 and costs, and his motor vehicle operator's license be suspended for sixty days. It provided also:
'* * * On the showing made, on payment of One Hundred Dollars ($100.00) of the above fine and the costs of this action, the balance of said fine is suspended during the good conduct of the defendant, and the defendant is hereby paroled to the sheriff of Davis County, Iowa.'
The clerk spread the judgment on the record in this form.
After a contested trial and hearing had in July, 1948, the Court (Judge Taylor), on August 10, found the following part of the judgment orally pronounced on February 14, was not shown in the judgment entry:
'That upon failure to pay said fine, imposed in this cause, or any portion thereof, the defendant be imprisoned in the county jail of Davis County, Iowa one day for every three and one third dollars of the unpaid balance of said fine.
'Appeal Bond is hereby fixed at $1000.00.'
The Court found and concluded this was an evident and obvious mistake in the record of the judgment and ordered and adjudged that the omitted provisions be incorporated into the record of the judgment as of the time of said oral pronouncement, to correctly show the sentence actually pronounced. Defendant has appealed.
About March 22, 1948, Judge Taylor advised the county attorney that the sheriff reported defendant had not paid the fine or any part thereof. The county attorney was directed to tell the clerk to issue a mittimus committing defendant to jail for nonpayment of the fine. This was done and defendant was committed to the county jail March 22. At that time both the Judge and the county attorney believed the judgment as shown of record, contained the provision for imprisonment upon failure to pay the fine.
April 16 defendant sought a writ of habeas corpus alleging the judgment did not provide for imprisonment upon failure to pay the fine. April 17 the Court (Judge Taylor) without notice to defendant, attempted to correct the judgment entry by a nunc pro tunc entry which supplied this provision. April 19 the Court (Judge Simmons) which heard the habeas corpus action ordered that defendant be discharged, finding the correction of the judgment made at a subsequent term without notice, was invalid. June 22 the county attorney filed a motion for the state for a nunc pro tunc record entry to correct the judgment and defendant was notified of the time and place of hearing. June 28 defendant paid the clerk $100 to be applied on his fine and $35.05 to cover the costs assessed against defendant. Defendant filed several motions and a resistance to the motion of the state for nunc pro tunc entry.
I. The evidence of the county attorney, defendant's attorney and Judge Taylor was that the judgment orally pronounced February 14, provided that if the fine was not paid, defendant should be committed to the county jail one day for each three and one third dollars of the unpaid balance, and the appeal bond was fixed at $1,000; that the county attorney was directed to prepare an entry for the record in accordance with such pronouncement; and that the entry as prepared in the county attorney's office, was submitted to and approved as to form by defendant's attorney and was thereafter signed by Judge Taylor and filed. The evidence of these witnesses was that through oversight or mistake the provisions in question were omitted from the entry and that neither the county attorney, defendant's attorney nor Judge Taylor discovered the omission. There was evidence from the sheriff to whom defendant was paroled, that Judge Taylor advised the sheriff defendant's sentence included imprisonment upon failure to pay the fine and instructed him to report such failure. As above stated, the sheriff later did so report, mittimus issued and defendant was imprisoned.
Several witnesses for defendant testified they were in the court room when defendant was sentenced but were unable to hear or did not remember all of the pronouncement of the court. Defendant testified he did not hear anything said about his going to jail for failure to pay the fine. However, defendant averred, in a verified pleading, that he was allowed to go at liberty for the purpose of raising the money to pay his fine. He testified, 'I had thirty days to pay the fine and costs.' His attorney testified the county attorney agreed to withhold the mittimus for 30 days. Had it not been understood failure to pay the fine would result in imprisonment there would have been no reason for any arrangement for withholding the mittimus. The record amply supports the finding and conclusion of the trial court that the omission of the provisions in question from the record of the judgment was an evident and obvious mistake.
II. Defendant contends the court erred in entering the April 17 nunc pro tunc order correcting the judgment entry. It happened there was an error in that order in that it corrected the judgment entry to recite that upon failure to pay the fine defendant be imprisoned 'one day for every three and one third dollars of the unpaid balance of said bond.' (Italics supplied) However, the order of April 17 would not invalidate the subsequent nunc pro tunc order of August 10. Puckett v. Guenther, 142 Iowa 35, 120 N.W. 123, 134 Am.St.Rep. 402; Chariton and Lucas County National Bank v. Taylor, 213 Iowa 1206, 240 N.W. 740. The ultimate question is whether the order of August 10 was erroneous. Hence defendant's contention that the order of April 17 was erroneous need not be here considered.
III. Defendant objected to Judge Taylor hearing and determining the motion for nunc pro tunc entry, asserting, Judge Taylor 'will be acting as a court and also as judge of his own acts, and might consider matters that will not be subject to cross-examination by the defendant, and it is an improper procedure and prejudicial to the defendant.' Error is predicated upon the overruling of this objection.
Section 622.12, Code of Iowa 1946, I.C.A., provides a judge is a competent witness for either party and may in his discretion order the trial to take place before another judge. And it has been the general practice in this jurisdiction that the judge who made the order hear and determine applications to correct it. National Loan & Investment Co. v. Bleasdale, 159 Iowa 529, 141 N.W. 456; Stockdale v. Johnson, 14 Iowa 178; Chariton & Lucas County National Bank v. Taylor, 213 Iowa 1206, 240 N.W. 740; Murnan v. Schuldt, 221 Iowa 242, 265 N.W. 369; Hamill v. Joseph Schlitz Brewing Co., 165 Iowa 266, 143 N.W. 99, 145 N.W. 511; State v. Frey, 206 Iowa 981, 221 N.W. 445; Cable Co. v. Miller, 162 Iowa 351, 353, 143 N.W. 94. Puckett v. Guenther, 142 Iowa 35, 37, 120 N.W. 123, 124, 134 Am.St.Rep. 402, states:
See also State v. Crosby, 67 Iowa 352, 354, 25 N.W. 279.
In Bisignano v. Municipal Court, 237 Iowa 895, 23 N.W.2d 523, one found guilty of contempt for assaulting a judge complained that the trial was had before the same judge. This court affirmed the judgment with the statement the judge might well have called in another judge. See also 30 Am.Jur. 786, Judges § 77. Much less ground for complaint appears here.
In Downey v. United States, 67 App.D.C. 192, 91 F.2d 223, relied upon by defendant, the judge did not testify and appellant was not given the right of inspection and cross-examination. Moreover, Judge Taylor testified on direct examination and offered to submit to cross-examination. We conclude the refusal to call in another judge was not error. Our rule upon this proposition is less strict than the Federal rule.
IV. Defendant contends the nunc pro tunc order of August 10 was erroneous. The correction was sought to make the record entry conform to the actual pronouncement of the court, not to evidence a change in the decision itself. Such proceedings are clearly within the inherent power of the court and the existing statutes are merely cumulative. 13 Iowa Law Rev. 243; Murnan v. Schuldt, 221 Iowa 242, 265 N.W. 369; Hofacre v. City of Monticello, 128 Iowa 239, 243, 103 N.W. 488; Fuller v. Stebbins, 49 Iowa 376; Lambert v. Rice, 143 Iowa 70, 74, 120 N.W. 96; Hobson v. Dempsey Const. Co., 232 Iowa 1226, 1231, 7 N.W.2d 896; Freshour v. Freshour, 233 Iowa 1144, 1147, 11 N.W.2d 375; Burry v. Haynes, 232 Iowa 1209, 1219, 7 N.W.2d 914; State v. Frey, 206 Iowa 981, 984, 221 N.W. 445; Snyder v. Fahey, 183 Iowa 1118, 168 N.W. 117. It may be noted that the corrective order was made at the term of court immediately following the term at which the judgment was pronounced and before the record for the prior term was signed. Code section 604.41, I.C.A.; 13 I.L.R. 252; State v. Crosby, 67 Iowa 352, 354, 25 N.W. 279; Hurley v. Dubuque Gas Light and Coke Co., 8 Iowa 274, 277; Greazel v. Price, 135 Iowa 364, 367, 112 N.W. 827; Concannon v. Blackman, 232 Iowa 722, 727, 728, 6 N.W.2d 116; Crimes Savings Bank v. Jordan, 224 Iowa 28, 33, 276 N.W. 71.
The rendition of a judgment is the judicial...
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