State v. Kovolosky

• Citation: 61 N.W. 223,92 Iowa 498
• Parties: STATE v. KOVOLOSKY.
• Decision Date: 13 December 1894
• Court: Iowa Supreme Court

92 Iowa 498

61 N.W. 223

STATE

v.KOVOLOSKY.

Supreme Court of Iowa.

Dec. 13, 1894.

Appeal from district court, Benton county; John R. Caldwell, Judge.

Indictment for larceny. Verdict of guilty, and the defendant appealed. Affirmed.Tom H. Milner, for appellant.

Thomas A. Cheshire and John Y. Stone, Atty. Gen., for the State.

GRANGER, C. J.

1. The indictment is assailed, and the facts relied upon to set it aside are as follows: Cato Sells was the county attorney for Benton county, and tendered his resignation to the board of supervisors of that county, which accepted it, and appointed to the vacancy one Matt Gaasch. Gaasch, before his appointment, and before the case was presented to the grand jury, had so acted as counsel for defendant that he felt disqualified to act in this particular case, and Sells was appointed by the court to act in his stead. Sells was before the grand jury during its investigation of the case, as county attorney, and when the indictment was prepared it was signed by “Matt Gaasch, County Attorney.” It is said by appellant: “If Cato Sells was county attorney, he should have signed the indictment. If Matt Gaasch was county attorney, then Sells' appearance before the grand jury was strictly forbidden by law.” It is then urged that Sells was county attorney, and reliance is placed on a claim that the resignation should have been made to the governor of the state, and not to the board of supervisors. By chapter 73, Acts 21st Gen. Assem., it is provided that at the general election in 1886, and every two years thereafter, a county attorney shall be elected in every county in the state, and he was unmistakably a county officer. Section 782 of the Code provides for the resignation of civil officers, and to whom they shall be made, and subdivision 4 is, “By all county officers to the board of supervisors, and by members of the board of supervisors to the county auditor.” Subdivision 2 of the section is as follows: “By senators and representatives in congress and of all officers elected by the qualified voters of the state or chosen by the general assembly, and by judges of courts of record, and district attorneys, to the governor.” It is because of this latter provision that it is urged that the attempted resignation of Sells is of no validity. In the annotated copy of the Code (McClain's, § 1254) between the words “district” and “attorney,” in subdivision 2 of the section, is the word “county,” in brackets, and importance is attached to that fact. As we understand,--in fact, it so appears from the preface,--the word is so inserted by the compiler or author as indicating “the word which should be substituted to carry out the change intended.” We are therefore to look to the section with the word “county” omitted, and with other provisions of the law on the same subject, to determine the question. By section 10 of the act creating the office of county attorney, it is provided: “Wherever the term district attorney appears in the laws of Iowa, it shall hereafter mean county attorney, and all laws now in force regulating the duties of district attorneys in criminal matters and proceedings, shall apply to the county attorneys within their respective...