State v. Klaveren
| Decision Date | 24 June 1929 |
| Docket Number | 39643,39644 |
| Citation | 226 N.W. 81,208 Iowa 867 |
| Parties | STATE OF IOWA, Appellee, v. ART VAN KLAVEREN, Appellant (two cases) |
| Court | Iowa Supreme Court |
Appeal from Wapello District Court.--GEORGE W. DASHIELL, Judge.
In the first of the above-entitled cases, the defendant entered a plea of guilty to a county attorney's information charging the crime of nuisance in using a certain building and place for the purpose of having possession of certain instruments commonly known as a still, intended for use and capable of being used in the manufacture of intoxicating liquor. In the second case, the defendant was indicted for the illegal transportation of intoxicating liquor, it being also charged in the indictment that the defendant had been formerly convicted on March 14, 1928, in the district court of Monroe County, of the crime of maintaining a liquor nuisance. To this indictment, defendant also entered a plea of guilty. From the judgments pronounced by the court, the defendant has appealed.--Judgment in first case affirmed. Judgment in second case modified and affirmed.
Judgment in first case affirmed. Judgment in second case modified and affirmed.
R. R Ramsell, for appellant.
John Fletcher, Attorney-general, and E. K. Bekman, County Attorney, for appellee.
Defendant 's attack upon the judgments in these two cases was made by the same motion, and his briefs and arguments in said cases in this court are identical. We will, therefore, dispose of the same in one opinion. The first of said cases was known in the district court as Cause No. 6114, and the second as No. 6167, and we will so speak of them in this opinion.
On March 21, 1928, in Cause No. 6114, a county attorney's information consisting of two counts was filed. The first count charges that, on or about the 29th day of February, 1928, the defendant did use a certain building and place situated in Wapello County for the purpose of having possession of certain instruments commonly known as a still, intended for use and capable of being used in the manufacture of intoxicating liquor. The second count charges that, on or about the 29th day of February, 1928, the defendant did unlawfully have in his possession certain intoxicating liquors, to wit, "Moonshine Whiskey." On April 16, 1928, the defendant, by his attorney, waived arraignment, and entered a plea of not guilty; and at the request of the defendant, the cause was continued to the next term of the district court. At said term, on September 10, 1928, the defendant appeared in court without his attorney, and stated that he did not desire his presence, and personally asked to withdraw his plea of not guilty, and entered a plea of guilty, as charged in Count 1 of the information. On motion of the county attorney, Count 2 of the information was dismissed. Thereupon, the court fixed as the time for pronouncing judgment September 17th, on which date the defendant appeared in person and stated in open court "that he had nothing to say, or no reason to offer why judgment should not be pronounced;" and the court entered judgment, imposing a fine of $ 600 and the costs of prosecution, including an attorney's fee of $ 50 to be taxed in favor of the county attorney, and ordering that defendant be committed to the county jail until such fine and costs were paid, such imprisonment to be one day for each $ 3.33 1/3 of said fine and costs, and further ordering that the defendant be imprisoned in the county jail for a term of six months.
In Cause No. 6167, the grand jury, on September 5, 1928, returned an indictment against the defendant, it being therein charged that, on or about the 18th day of August, 1928, the defendant did unlawfully transport and convey in a certain automobile certain intoxicating liquors, to wit, "hooch." It is further charged in the indictment "that the defendant, Art Van Klaveren, has been formerly convicted in the district court of Monroe County, Iowa, on the charge of maintaining a liquor nuisance; and judgment was rendered against said defendant by said court on March 14, 1928, and which is found in District Court Record 34, page 331, of Monroe County." On September 7th, the defendant appeared in court, and was there informed of his right to counsel, and made the statement that he did not desire an attorney, and was duly arraigned; and the court fixed the time for the plea for September 10, 1928, when the defendant appeared in person, and entered a plea "that he is guilty as charged in the indictment," and September 17th was fixed as the time for pronouncing judgment. On the latter date, immediately after the pronouncement of judgment in Cause No. 6114, the court entered judgment in this case, imposing a fine of $ 1,000 and costs of prosecution, including an attorney's fee of $ 50 in favor of the county attorney, and ordering that he be committed to the county jail of Wapello County until said fine and costs are paid, at the rate of one day for each $ 3.33 1/3 of said fine and costs; and also ordering that the defendant be imprisoned in the county jail for the term of one year. As a part of the judgment, the court ordered that the imprisonment of the defendant in this case "shall begin at the expiration of the imprisonment imposed under the sentences pronounced in Cause No. 6114."
Thereafter, and during the same term of court, the defendant filed his motion, which was made to apply to both judgments, asking therein for a new trial; that he be permitted to enter a new plea, and for a modification of the sentences and fines imposed by the court. This motion was overruled. That portion of his motion asking for a new trial comes too late. Section 13943 of the Code of 1927 provides that the application for a new trial must be made before judgment. That portion of his motion asking that he be permitted to enter a new plea also comes too late. The substitution of another plea for a plea of guilty must occur before the entry of judgment. See Section 13803 of the Code.
The motion contains no grounds which are recognized by our statutory law for the arrest of judgments. It is argued by the defendant that the county attorney's information in Cause No. 6114 is defective, in that the minutes of the testimony of the witnesses do not show that the witnesses were sworn. Defendant's complaint at this point is without merit. See State v. Hueser, 205 Iowa 132, 215 N.W. 643, where we declared:
"The statute does not require that the county attorney shall attach copies of 'sworn minutes' of the evidence to the information."
The defendant further argues that the minutes of the evidence of each witness are not attached to, or filed with, the information. We have examined the information, and find that it is sufficient in this respect to comply with the statutory law, Section 13647 of the Code. Moreover, a failure, if any, in this respect has been waived by the defendant. See Section 13659 of the Code.
It is apparent that the only thing properly coming before us for our consideration is the punishment which was inflicted by the court, which the defendant alleges is excessive. The motion of the defendant is supported by the affidavits of himself and wife and a physician. Their affidavits are to the effect that the defendant is not in the prime of health, and that a long period of confinement in the county jail might undermine his health and lead to serious consequences. It is sufficient to say that a period of confinement by way of...
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