State v. Judkins

• Decision Date: 15 December 1925
• Docket Number: No. 36820.,36820.
• Citation: 206 N.W. 119,200 Iowa 1234
• Parties: STATE v. JUDKINS.
• Court: Iowa Supreme Court

200 Iowa 1234

206 N.W. 119

STATE

v.JUDKINS.

No. 36820.

Supreme Court of Iowa.

Dec. 15, 1925.

Appeal from District Court, Clarke County; A. R. Maxwell, Judge.

Appeal by the State of Iowa from an order of the district court setting aside an indictment against the defendant. Affirmed.Ben J. Gibson, Atty. Gen., and M. R. Stansell, of Osceola, for the State.

O. M. Slaymaker, of Osceola, for appellee.

EVANS, J.

It appears from the record that on October 28, 1921, an indictment for embezzlement was returned against the defendant by the grand jury of Clarke county. Prior to such date the defendant had been sentenced to the penitentiary at Ft. Madison, and was there confined at the time of the return of the indictment, and has been there confined ever since. The indictment was duly filed with the clerk of the district court, but was not entered upon the trial docket nor made public in any way. No warrant was issued thereunder, nor was the defendant arrested thereunder, nor in any manner brought into the custody of the court. That is to say, the indictment was allowed to remain dormant, presumably to await the release of the defendant from his existing sentence, before issuing a warrant for his arrest under such indictment. On November 25, 1924, counsel, purporting to appear for the defendant, filed a motion to quash the indictment on various grounds. One of these grounds was that the grand jury which returned the indictment was illegally drawn, and that the indictment was void for that reason. The district court took cognizance of this motion and over the objection of the state permitted an inquiry to be made as to the facts, and witnesses were examined for that purpose. At the close of such examination, the court sustained the motion and set aside the indictment on the ground that the grand jury was illegally drawn, and was therefore not legally constituted. This is the order appealed from by the state.

The state challenged the jurisdiction of the district court to take cognizance of the motion filed by defendant's counsel because no jurisdiction had ever been acquired by the court over the person of the defendant. The counsel purporting to appear for the defendant contend that the defendant has a right to waive the issuance of a warrant, and to appear voluntarily to the indictment through counsel and that the custody of the person of the defendant is not essential to the jurisdiction of the court. They urge further that the defendant is in fact in the custody of the state, and that this fact is sufficient to confer the required jurisdiction.

[1][2] That an indicted defendant may voluntarily appear when advised of an indictment, and thereby surrender himself to the officer holding the warrant and to the custody of the court, is beyond dispute. This falls far short of saying that the district court can acquire jurisdiction of him without acquiring custody of his person. In this case the defendant was not bound over to the grand jury by a preliminary examination. He was therefore not under previous bail at any time. When the indictment was returned against him, he was not in court in person, nor was he under bail to appear. The only power that the court had over him was to issue a warrant for his arrest. No other method is provided by our statute for acquiring jurisdiction over the person of a defendant. The statutory procedure following an indictment is set forth chronologically. No right of attack upon the indictment prior to defendant's arrest thereunder is conferred by the statute. From the very nature of the case it could not be otherwise. Under the statute the court upon quashing an indictment, may order the case resubmitted to another grand jury, and may hold the defendant pending such resubmission. This presupposes his previous arrest. Nor is there any basis for the court's jurisdiction over the person of the defendant in a criminal prosecution, except pursuant to warrant and an arrest thereunder. Such jurisdiction cannot be acquired by a mere record entry, or appearance either by counsel or otherwise. Direct authorities on this question are few. Those from other jurisdictions are collated in 31 C. J. 798, and 16 C. J. 148. We have expressed ourselves indirectly on the questionin Stone v. Conrad, 105 Iowa, 21, 74 N. W. 910, and Quaintance v. Lamb, 185 Iowa, 242, 170 N. W. 398, and more directly in Ex parte Baldwin, 69 Iowa, 502-504, 29 N. W. 428. In the latter case, where a defendant had been indicted for the same offense in two counties, each court having jurisdiction of the offense, we held the jurisdiction of the person of the defendant was acquired by the court which first caused his arrest, and thereby acquired the custody. In the case at bar, if the court had overruled the motion of counsel, and had thereupon entered a judgment for costs against the defendant, such judgment would have been wholly ineffective for want of existing jurisdiction over the person. This illustrates the want of right in an absent defendant through counsel to...