State v. Kiefer

Decision Date26 June 1917
Docket NumberNo. 30941.,30941.
Citation183 Iowa 319,163 N.W. 698
PartiesSTATE v. KIEFER.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Salinger and Weaver, JJ., dissenting.

Appeal from District Court, Buchanan County; H. B. Boies, Judge.

The defendant, with W. H. and John Kiefer, was indicted September 24, 1913, for fraudulent banking, charging that:

“The said Adam Kiefer, W. H. Kiefer, and John Kiefer on or about the 6th day of March, in the year of our Lord one thousand nine hundred and thirteen, in the county aforesaid, did, being then and there engaged in the banking and deposit business under the name and style of Kiefer Bros. Banking Company, a copartnership, which copartnership then and there being insolvent, and well knowing said copartnership to be so insolvent, did knowingly accept and receive from one E. S. Burr a certain certificate of deposit issued by said Kiefer Bros. Banking Company for one thousand eight hundred dollars ($1,800.00), the property of said E. S. Burr, and did then and there deliver to said E. S. Burr a new certificate of deposit issued by said Kiefer Bros. Banking Company for one thousand eight hundred dollars ($1,800.00) in return for the certificate of deposit delivered to them by said E. S. Burr, contrary to and in violation of the form of the statute in such cases made and provided.”

There was a plea of not guilty, and defendant alone put on trial September 22, 1915. E. S. Burr was called as a witness, and, after testifying that his name was Eugene S. Burr, stated that Kiefer Bros. Banking Company operated a bank at Hazleton, that he had a certificate of deposit issued thereby, and that in response to an inquiry as to whether he wished the money longer defendant said he did and caused a certificate to issue therefor in words following:

“Kiefer Bros. Banking Company. Hazleton, Iowa, March 3, 1913. No. 1499. Eugene S. Burr has deposited in this bank eighteen hundred fifty-eight and 75/100 dollars, $1,858.75, payable to the order of self or wife in current funds, on the return of this certificate properly indorsed, with interest at 4 per cent. if left 3 months, with interest at X per cent. if left X months, with interest at 5 1/2 per cent. if left 12 months. Interest to cease after 12 months. Adam Kiefer, Pt.”

This was offered in evidence, but excluded because not the certificate described in the indictment, Thereupon the state moved for permission to amend the indictment:

“Comes now the state of Iowa, by R. W. Hasner, county attorney of Buchanan county, state of Iowa, and asks permission of the court to amend the indictment in the above-entitled cause in the following particulars, to wit: First. That the name Eugene S. Burr be substituted in all places in said indictment where the name E. S. Burr now appears. Second. That the description of the certificate of deposit alleged to have been received and accepted by said Adam Kiefer from E. S. Burr be changed and corrected so as to be for the amount when written of $1,761.85. Third. That the description of the certificate of deposit alleged in said indictment to have been issued to E. S. Burr on March 6, 1913, be changed and corrected so as to be for the amount of $1,858.75. And further, that said certificate of deposit was in the words and figures following, to wit: Kiefer Bros. Banking Company. Hazleton, Iowa, March 3, 1913, No. 1499. Eugene S. Burr has deposited in this bank eighteen hundred fifty-eight and 75/100 dollars, $1,858.75, payable to the order of self or wife in current funds, on the return of this certificate properly indorsed, with interest at 4 per cent. if left 3 months, with interest at X per cent. if left X months, with interest at 5 1/2 per cent. if left 12 months. Interest to cease after 12 months. Adam Kiefer, Pt.’ Fourth. That said indictment be amended so that the words ‘a more particular description of which is to the grand jury unknown’ be inserted following the words ‘the property of said E. S. Burr.’ Notice in words following was served on defendant: ‘To Adam Kiefer: You are hereby notified that on September 27, 1915, at 4:30 o'clock p. m., the state of Iowa will present to the district court of Iowa in and for Buchanan county, at the courthouse in the city of Independence, Buchanan county, Iowa, its application for permission to amend the indictment in the case of State of Iowa, Plaintiff, v. Adam Kiefer, Defendant, it being case No. 13807 in said district court of Buchanan county, state of Iowa. You are hereby notified that you are required to appear at said time and place and show cause, if any there is, why said permission to amend the said indictment should not be granted. You are further notified that a copy of the said motion or application to amend said indictment,setting forth the particular amendments asked for as herein stated, is hereto attached and marked Exhibit A. [Signed by the county attorney].’

Resistance was interposed by counsel for defendant on the grounds:

(1) That the name Eugene S. Burr requested to be substituted for the name E. S. Burr is the name of a separate and distinct individual and relates to a separate and distinct offense and goes to the substance of the indictment to such an “extent as to prejudice the substantial rights of the defendant, charging him with a different crime from that charged in the original indictment returned by the grand jury.

(2) That the description of the certificate of deposit alleged to have been received and accepted by the said Adam Kiefer from one E. S. Burr is in the original indictment, is based to the amount of $1,761.85 as suggested by the amendment to the indictment, is to offer to introduce evidence of another and distinct offense prejudicial to the rights of the defendant and charging him with an entirely different crime from the one set forth in the original indictment; the original indictment indicating that the Kiefer Bros. Banking Company, a copartnership, received the sum of $1,800 from one E. S. Burr, while the amendment set forth charged the fact to be that one Adam Kiefer received from one Eugene S. Burr the sum of $1,761.85 as represented by the certificate of deposit, thus conclusively showing that the crime sought to be charged by the amendment has not any relation to the state case that was passed upon by the grand jury in the original indictment.

(3) That the description of the certificate of deposit alleged in the indictment to have been issued to E. S. Burr on March 6, 1913, was for the sum of $1,800, whereas the certificate of deposit set forth in the amendment to the indictment is of the date of March 3, 1913, and issued to one Eugene S. Burr for $1,858.75, said last-named certificate of deposit being payable to the order of said Eugene S. Burr and wife, the said new certificate of deposit mentioned in the notice to amend the indictment bearing no resemblance either in date, name of the person to whom issued, amount, or person to whom payable to the one charged in the original indictment, such amendment being prejudicial to the substantial rights of the defendant and charging him with an entirely separate and distinct crime from that charged in the original indictment, returned by the grand jury.

(4) That the so-called amendment to the indictment is in no respect an amendment to the original indictment, but that the facts set forth therein constitute a separate and distinct crime entirely different from that charged by the grand jury in the original indictment; that the names in the certificate of deposit alleged to have been received and accepted by the Kiefer Bros. Banking Company in the original indictment fail to correspond with the certificate of deposit alleged to have been received and accepted by one Adam Kiefer; that the description of the certificate of deposit alleged in the original indictment to have been issued to E. S. Burr corresponds neither in date, amount, name of the person to whom issued, or name of the persons to whom the same would be paid with the original indictment as returned by the grand jury; that the grand jury of Buchanan county never passed on any such case as is now sought to be charged by the proposed amendment to the original indictment, and that to permit the same to be filed at this time would be to substitute the county attorney for the grand jury, and would be to permit and allow the county attorney to substitute an entirely new indictment charging an entirely different crime from that charged in the original indictment returned by the grand jury.

(5) That the proposed amendment does not correct errors or omissions in the indictment as to matters of form or correct errors in the name of any person or in the description of any person or thing or in the allegations concerning the ownership of property described in the indictment, but that such proposed amendment substitutes an entirely new indictment for the original indictment as returned by the grand jury.

(6) That no copy of the proposed amendment has been served on the defendant.

(7) The amendment to the indictment is made and signed by a different county attorney from that named in the original indictment, conclusively showing that the county attorney who drew the amendment could have had no actual knowledge of the case presented to the grand jury and of the facts on which the original indictment signed a true bill by its foreman was based, and in presenting an entirely new case at this time he usurps the functions of the grand jury and prejudices the rights of the defendant contrary to and in violation of law.”

The resistance was overruled and leave granted to amend the indictment. Thereupon defendant moved for a continuance. This motion was overruled. The state then tendered the amendment to the indictment” in words following:

“In the District Court of the State of Iowa in and for Buchanan County, September Term, 1915. State of Iowa, Plaintiff, v. Adam Kiefer, Defendant. Amendment to Indictment.

Comes now the state of Iowa by ...

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2 cases
  • State v. Kiefer
    • United States
    • Iowa Supreme Court
    • June 26, 1917
  • Brown v. Chesapeake Appalachia, LLC
    • United States
    • U.S. District Court — Northern District of West Virginia
    • August 21, 2013
    ...a judicial construction outof harmony with the universally accepted meaning of the words as defined by lexicographers."); Iowa v. Kiefer, 163 N.W. 698 (Iowa 1918) (quoting Kollock, 73 N.W. at 779); Loeffler v. Federal Supply Co., 102 P.2d 862, 864 (Okla. 1940) ("To renew a charter is to rev......

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