State v. Kovolosky

CourtUnited States State Supreme Court of Iowa
Writing for the CourtGRANGER
PartiesSTATE v. KOVOLOSKY.
Decision Date13 December 1894

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.

[61 N.W. 224]

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...

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7 practice notes
  • State v. Olson, No. 49158
    • United States
    • United States State Supreme Court of Iowa
    • November 12, 1957
    ...to appoint a reputable attorney to appear before the grand jury to assist the county attorney in an investigation. State v. Kovolosky, 92 Iowa 498, 501, 61 N.W. 223, is an earlier decision which also recognizes the power of the district court to appoint an assistant to the county attorney w......
  • Barron v. State, 17012
    • United States
    • United States State Supreme Court of Mississippi
    • July 6, 1914
    ...State, 68 Ala. 92; Bennett v. State, 62 Ark. 516; Gitchell v. State, 146 Ill. 175. It was also held in the Iowa case of State v. Coloski, 92 Iowa 498. It was also held by the supreme court of the state of Kentucky in Frankman v. Comm., 105 Ky. 237. It was also held in State v. Adams, 40 La.......
  • Burry v. Haynes, No. 46211.
    • United States
    • United States State Supreme Court of Iowa
    • February 16, 1943
    ...of the indictment. Such pronouncement was expressly followed in State v. Wilmoth, 63 Iowa 380, 381, 19 N.W. 249;State v. Kovolosky, 92 Iowa 498, 501, 61 N.W. 223; and State v. Mathews, 133 Iowa 398, 399, 109 N.W. 616. Section 13655, Code 1935, provides, “The information shall be drawn and c......
  • State v. Mathews
    • United States
    • United States State Supreme Court of Iowa
    • November 13, 1906
    ...has held that the signature of the county attorney is not essential to the validity of an indictment. State v. Kovolosky, 92 Iowa, 498, 61 N. W. 223;State v. Ruby, 61 Iowa, 86, 15 N. W. 848;State v. Wilmoth, 63 Iowa, 380, 19 N. W. 249. Moreover, the record shows that the county attorney's n......
  • Request a trial to view additional results
7 cases
  • State v. Olson, No. 49158
    • United States
    • United States State Supreme Court of Iowa
    • November 12, 1957
    ...to appoint a reputable attorney to appear before the grand jury to assist the county attorney in an investigation. State v. Kovolosky, 92 Iowa 498, 501, 61 N.W. 223, is an earlier decision which also recognizes the power of the district court to appoint an assistant to the county attorney w......
  • Barron v. State, 17012
    • United States
    • United States State Supreme Court of Mississippi
    • July 6, 1914
    ...State, 68 Ala. 92; Bennett v. State, 62 Ark. 516; Gitchell v. State, 146 Ill. 175. It was also held in the Iowa case of State v. Coloski, 92 Iowa 498. It was also held by the supreme court of the state of Kentucky in Frankman v. Comm., 105 Ky. 237. It was also held in State v. Adams, 40 La.......
  • Burry v. Haynes, No. 46211.
    • United States
    • United States State Supreme Court of Iowa
    • February 16, 1943
    ...of the indictment. Such pronouncement was expressly followed in State v. Wilmoth, 63 Iowa 380, 381, 19 N.W. 249;State v. Kovolosky, 92 Iowa 498, 501, 61 N.W. 223; and State v. Mathews, 133 Iowa 398, 399, 109 N.W. 616. Section 13655, Code 1935, provides, “The information shall be drawn and c......
  • State v. Mathews
    • United States
    • United States State Supreme Court of Iowa
    • November 13, 1906
    ...has held that the signature of the county attorney is not essential to the validity of an indictment. State v. Kovolosky, 92 Iowa, 498, 61 N. W. 223;State v. Ruby, 61 Iowa, 86, 15 N. W. 848;State v. Wilmoth, 63 Iowa, 380, 19 N. W. 249. Moreover, the record shows that the county attorney's n......
  • Request a trial to view additional results

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