State v. Hartung
| Decision Date | 13 January 1948 |
| Docket Number | 47045. |
| Citation | 30 N.W.2d 491,239 Iowa 414 |
| Parties | STATE v. HARTUNG. |
| Court | Iowa Supreme Court |
Rehearing Denied March 12, 1948. [Copyrighted Material Omitted]
Walter F. Maley, and R. R. Nesbitt, both of Des Moines, for appellant.
John M. Rankin, Atty. Gen., Charles A. Scholtz, Asst. Atty. Gen and Edward Kelley, County Atty., of Ames, for appellee.
Defendant was charged by county attorney's information, under section 723.1, Code 1946, with the crime of interference with the administration of justice. After an application for bill of particulars had been denied and a demurrer to the information overruled there was filed an amendment to the information in which it was specified that the crime was committed by attempting 'to improperly influence, intimidate, impede or obstruct' the county attorney in relation to two pending criminal prosecutions against Donald Stanfel and Carl Robinson, respectively.
Attached to and filed with the original information were 'minutes of evidence' setting out proposed testimony of witnesses Clinton Summers, Freeda Rowland, Moody Vineyard, and B. M. Soper, county attorney, stating substantially the facts that later developed on the trial.
The pending prosecutions against Stanfel and Robinson were for alleged rape upon Freeda Rowland, under the name Marie Summers. The informations were sworn to by Clinton Summers. Both Stanfel and Robinson, by defendant as their attorney, had waived preliminary hearing and had been bound over to the grand jury.
Defendant urges eleven 'points relied on for reversal,' argued under seven divisions of his brief. We may save needless repetition by stating them as we proceed with their discussion.
We first brief the material facts. On or about October 29, 1946, while Clinton Summers and Freeda Rowland (Marie Summers) were hitchhiking near Nevada, the woman was attacked by two strangers. Later that evening she and Summers were taken by the sheriff of Story County to Des Moines where they identified Stanfel and Robinson as the attackers.
The two men were arraigned the next day in Municipal Court in Ames, defendant appearing for them, and they were bound over to await the action of the grand jury. Summers and Mrs. Rowland returned to St. Louis, Missouri.
On November 10 according to the undisputed testimony defendant approached them in St. Louis. He told them: that he was the attorney for Stanfel and Robinson; that 'the case was going to be throwed out, nothing to it; and that the people of Des Moines was * * * backing them up in their character and they had no records at all.' He showed them pictures of a boy and girl he told them were Stanfel's children. He also produced already prepared statement for them to sign remaking they 'might as well get something out of this.'
They told him they had identified the man in Des Moines and he said it didn't make any difference, that both men were 'wonderful characters and had never been in any trouble before * * *.' He was there approximately three hours.
He offered them $100 to sign the papers he had and promised them $500 more. He said: 'All you have to do is not to identify the men' when asked to identify them. After the paper was signed by both Summers and Mrs. Rowland defendant gave Mrs. Rowland or laid on the table $100 in bills and said 'he would be back in a week, if not that he would get the rest of the money, if he wasn't back in a week to call him up and reverse the charges.' Summers did call back on November 20th and inquired of defendant when he was coming down.
We have set out above from the testimony of Summers. Mrs. Rowland's testimony closely parallels it. She adds that defendant told her '* * * to pack my things and leave St. Louis and go to California and that no one would know where I was at and I wouldn't have to come up here.'
Mr. Soper, who was county attorney at that time but resigned the office, effective November 15, 1946, testified that defendant came to him November 13 and said: He handed the county attorney the document he had obtained execution of in St. Louis which was as follows:
The county attorney told him: 'I sent them a telegram this morning and hadn't received a reply' and defendant replied: 'They are on their way to California.' The county attorney said: 'It must have cost somebody some money' to which statement defendant made no denial. Mr. Soper later the same day received a telegram from Summers: 'I and my wife Marie Summers are still standing for affidavit and have not been contacted by anyone concerning the case * * *.'
Mr. Soper's secretary was present at the meeting between defendant and Soper and corroborates his testimony in a general way.
Defendant also told Mr. Soper that he had previously been to the office of Mr. Kelley, the incoming county attorney. Soper gave him to understand he (Soper) would not dismiss the charges against Stanfel and Robinson and defendant went his way. Kelley had already refused to have anything to do with it.
I. Section 723.1, Code 1946, under which defendant was informed against provides, so far as pertinent here, as follows:
The original information charged defendant merely with the crime of 'interference with the administration of justice' without stating what he did or giving any details of the alleged crime. The details were contained in the 'minutes of evidence' accompanying it. The court overruled defendant's application for bill of particulars and demurrer to the information. These rulings are assigned as error here. Had the trial then gone forward on that information we would now be confronted by the necessity of ruling on the correctness of those decisions and on defendant's further contention that if the information, as drawn, was to be held sufficient under the statute, the statute itself would be invalid as violative of section 10, article 1, of our state constitution and of the 14th Amendment to the constitution of the United States.
However, defendant was not tried under that information. Amendment was allowed upon proper notice. The amendment gave the names of the then pending criminal proceedings against Stanfel and Robinson and charged that defendant interfered with the administration of justice by attempting to improperly influence, intimidate, impede or obstruct B. M. Soper, County Attorney, by falsely representing to him that the witnesses could not identify Stanfel and Robinson as perpetrators of the alleged crime and would not appear as witnesses and were desirous of having the cases dismissed. We have first to determine whether the court erred in permitting such amendment. If he did not, then any question as to the rulings referred to is moot. Defendant argues that the ruling on the demurrer was an adjudication and the information could not thereafter be amended.
Six cases are cited. None of them goes to the length of holding that after a demurrer to an information is overruled the State is precluded from amending, before trial. Under section 773.42, Code 1946, amendment to an indictment may be made 'to correct errors or omissions in matters of form or substance.' Section 773.43 requires that, if the application for amendment be made before commencement of trial, service be made upon defendant or his attorney of the application and a copy of the proposed amendment. That was complied with in the instant case and resistance offered by defendant to the proposed amendment. These two code sections are made applicable to county attorney informations by code section 769.11.
The question presented here, as applied to an indictment, was expressly reserved from the opinion in State v. Leasman, 208 Iowa 851, at page 858, 226 N.W. 61, cited by appellant.
State v Sexsmith, 200 Iowa 1244, 206 N.W. 100, and State v. Sexsmith, 202 Iowa 537, 210 N.W. 555, are also cited. On the first Sexsmith appeal it was held that the indictment must specifically state the facts, 'as distinguished from conclusions of fact and law.' The case was reversed for error in overruling demurrer. Upon remand the demurrer was sustained, the trial court holding 'the...
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