State v. Hortman

• Decision Date: 13 January 1904
• Citation: 97 N.W. 981,122 Iowa 104
• Parties: THE STATE OF IOWA, Appellee, v. HARRY HORTMAN, Appellant
• Court: Iowa Supreme Court

97 N.W. 981

122 Iowa 104

THE STATE OF IOWA, Appellee, v. HARRY HORTMAN, Appellant

Supreme Court of Iowa, Des Moines

January 13, 1904

Appeal from Cherokee District Court.--HON. Geo. W. WAKEFIELD, Judge.

THE defendant was indicted by the grand jury of Cherokee county charged with the crime of murder in the first degree. After a demurrer to the indictment had been overruled, the defendant entered his plea of not guilty. Thereafter, and in open court, he withdrew the plea so entered and entered a plea of "Guilty of the homicide charged in the indictment." Evidence was taken by the court relative to the circumstances connected with the commission of the crime alleged, at the close of which the court announced that the circumstances were such that the defendant should be punished with death and the court thereupon fixed a time three days later for pronouncing judgment. On the day before the time thus fixed for pronouncing judgment, the defendant appeared in open court and filed a withdrawal of his plea of guilty as follows: "Comes now the defendant, Harry Hortman, and before the time fixed for pronouncing judgment herein, asks the court that he may withdraw his plea of 'Guilty of the homicide charged in the indictment,' heretofore entered herein, and the said defendant, Harry Hortman, now, in open court, withdraws his said plea of 'Guilty of the homicide charged in the indictment,' and enters his plea of not guilty." On the day fixed for judgment the court overruled such application of defendant to change his plea and upon the plea of guilty as theretofore entered, judgment in form was entered that he be punished with death, in the manner by law provided. From such judgment, the defendant appeals--Reversed.

REVERSED.

Wm. Mulvaney and C. H. Lewis for appellant.

C. W. Mullan and C. A. Van Vleck for the State.

OPINION

BISHOP, J.

The judgment from which this appeal is taken is assailed in argument by the learned counsel for appellant upon several grounds; the principal one being that, under the law of this state, the defendant had the absolute right, at any time before judgment was formally pronounced, to withdraw his plea of guilty, and substitute therefor a plea of not guilty, and accordingly that the court erred in refusing to permit him to make and have recorded the substitution of pleas as demanded by him. The contention of counsel is predicated upon the provisions of section 5337 of the Code, and former holdings of this court in cases wherein code provisions identical with section 5337 of the present Code have been under consideration, and the meaning and intent of the legislation as therein expressed construed and declared. Section 5337 provides as follows: "At any time before judgment the court may permit the plea of guilty to be withdrawn, and other plea or pleas substituted." An examination will disclose that the provision quoted appeared in the Code of 1851, and was re-enacted as a part of each of the subsequent Codes. The contention of counsel for appellant, in particular, is that the provision of the Code quoted must be construed as mandatory in character, and not as permissive, merely; that is, that it was the intent of the lawmaking power to provide for an absolute right, in respect of a change of plea, pending judgment on the part of persons charged with crime, and not simply to confide to trial courts discretionary power in respect of such subject-matter. To adopt the construction thus contended for, it is necessary, of course, to give the word "may," as it appears in the statute, a meaning equivalent to the meaning of the word "must," in its ordinary acceptation. That this may be done in proper cases is too well settled to require any special citation of authorities. Indeed, express authority therefor can be found in the statute: "Words and phrases shall be construed according to the context and the approved usage of the language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, shall be construed according to such meaning." But this rule is not to be observed when "such construction would be inconsistent with the manifest intent of the General Assembly, or repugnant to the context of the statute." Code, section 48. Whatever might be the view taken by the court, as now constituted, if the question were one of first impression, we think we are fully committed to the construction of section 5337 as contended for by appellant, and that the doctrine of stare decisis must be held to apply. A review of our cases will, we think, make the point clear, and justify the conclusion thus reached. In State v. Kraft, 10 Iowa 330, the prosecution of the defendant was begun before a justice of the peace. He pleaded guilty, and there was a judgment of fine and imprisonment, from which judgment he appealed to the district court. In the latter court he asked leave to withdraw his plea of guilty, which the court refused, and at once imposed upon him a judgment identical with that imposed by the justice. Under the law as it then stood, appeals from justices of the peace were required to be docketed in the district court, and "the cause when thus appealed should stand for trial, as an issue of fact on an indictment," etc. In other words, a case on appeal stood upon precisely the same footing as though the prosecution had been begun in the district court; the only difference--and that an immaterial one for the purposes of present consideration--being that in the one case an issue was presented by an information and a plea thereto, and in the other case an issue was presented by an indictment and a plea thereto. "The law, as we construe it, places the accused in each class...