State v. Kriechbaum

• Decision Date: 11 December 1934
• Docket Number: No. 42342.,42342.
• Citation: 219 Iowa 457,258 N.W. 110
• Parties: STATE v. KRIECHBAUM.
• Court: Iowa Supreme Court

219 Iowa 457

258 N.W. 110

STATE

v.KRIECHBAUM.

No. 42342.

Supreme Court of Iowa.

Dec. 11, 1934.

Appeal from District Court, Henry County; George W. Dashiell, Judge.

The question presented herein is whether the death of the defendant, pending the appeal, and before the determination thereof, abated the prosecution ab initio.

Action abated.

Seerley, Clark & Hale and Ben P. Poor, all of Burlington, for appellant.

Edward L. O'Connor and Walter F. Maley, both of Des Moines, and J. A. Dailey and Hirsch, Riepe & Wright, all of Burlington, for appellee.

EVANS, Justice.

In the court below, the defendant was prosecuted under an indictment charging him with accepting deposits in his bank while knowing the bank to be insolvent. There was a verdict of guilty and a judgment of conviction thereon. From such judgment an appeal was duly taken to this court and all proceedings under the judgment were suspended by the giving of bail as fixed by the court. After the case came to this court, and while still pending on appeal, the defendant died. Counsel, who represented him up to the time of his death, brought to the court the fact of such death and asked that the prosecution be deemed to have abated by reason of such death. Counsel for the state countered with a motion “to dismiss appeal at defendant's cost.” The question which divides the parties is whether the state is entitled to demand a judgment for costs or to maintain the judgment of the court below, so far as it was entered for costs.

[1][2] It is almost the universal holding of the courts, federal and state, that the death of a defendant in a criminal prosecution abates the action. The abatement is deemed to be the necessary result of the death and is not subject to any judgment or discretion of the court. The abatement applies not only to the pending proceedings in the appellate court, but applies likewise to all procedure had ab initio in the court below, including the verdict and judgment of conviction. More than a score of cases, federal and state, are cited by counsel for the deceased defendant in support of the above proposition. We shall not attempt to follow counsel through all their citations. We shall content ourselves with a citation of excerpts from a few of the authorities respectively relied on by the contending parties, beginning with the authorities cited by counsel for the deceased defendant.

The question presented is quite fully discussed in O'Sullivan v. People, 144 Ill. 604, 32 N. E. 192, 20 L. R. A. 143, as follows: “But in criminal cases, under indictments for felonies, the sole purpose of the action is not to give the people anything, but to punish the defendant in his person; and the primary judgment, when the defendant is found guilty, is, simply, * * * that he be punished, specifying how. It is true that, under our statute, judgment is also rendered for costs; but this is incidental only, and it stands or falls with the primary judgment that the defendant be punished. The inquiry upon the trial is only whether the defendant be guilty, and, if guilty, the punishment that shall be inflicted upon his person; the question of costs being neither submitted nor considered, and the judgment therefor resulting solely as a legal consequence of the primary judgment. It is therefore apparent that, in judgments in civil cases, property rights are more or less directly affected; and such rights, under statute, are made to descend to and be obligatory upon the representatives, after death, of either or all of the parties to the judgment. But in criminal cases, where judgments are rendered against the defendants under indictment for felony, the people acquire no property rights, and the representatives of the defendant do not take that which is affected by the primary judgment, namely, the person of the defendant. * * * The only instance found in the books in which a writ of error can, at common law, be prosecuted by the representatives of a deceased person, upon the record of his conviction in a criminal case, is that of an attainder for treason or felony. The effect of such attainder at common law was forfeiture of all estate, both real and personal, and corruption of blood. 4 Bl. Comm. p. 382. And it was held that a writ of error may be brought by the party attainted, ‘or, after his death, by his heirs or executors, to reverse an attainder of treason or felony, but by no other persons, whatever interest they may claim in the reversal.’ 1 Chit. Crim. Law, 746, 747. But, since our constitution provides that ‘no conviction shall work corruption of blood or forfeiture of estate’ (article 2, § 11, Const.), there can be no attainders for treason or felony here, and hence no case upon which the heir or executor can prosecute a writ of error to reverse an attainder. * * * When the defendant ordered to be punished is dead, the execution of that order is absolutely arrested; for the future it is as entirely a nullity as any subsequent judgment arresting it can possibly make it. * * * The writ of error abated upon the death of O'Sullivan. * * * No judgment will be entered for the costs of either party.”

In Blackwell v. State of Indiana, 185 Ind. 227, 113 N. E. 723, the Indiana court held as follows: “A judgment for a fine differs from a judgment based on a tort or contract. In case of a tort the judgment is based on the principle of compensation to the injured party. In cases arising out of contract the judgment is for money due the judgment plaintiff under the terms of a contract, or for damages for its breach. In case where a fine is imposed as a punishment, no principle of compensation is involved. A fine is imposed for the purpose of punishing the offender, and when an offender dies, he passes beyond the power of human punishment. There could be no justice in enforcing a fine against the estate of an offender, for such a course would punish only the family or those otherwise interested in the estate.”

In Stanisics v. State, 90 Neb. 278, 133 N. W. 412, the Supreme Court of Nebraska said: “The real issue in a criminal prosecution is the defendant's guilt or innocence. A judgment for costs following a conviction is but an incident to the judgment of conviction, If the judgment of conviction cannot be reviewed, the incident cannot be considered. * * * The appeal abated with the convict's death.”

In Boyd v. State, 3 Okl. Cr. 684, 108 P. 431, the Criminal Court of Appeals of Oklahoma said: “A civil action does not abate by the death of a party if the cause of action survive or continue, but in a criminal action the sole purpose of the proceedings is to enforce the criminal law and punish the person found guilty of a violation thereof. The personal representative of the deceased is not responsible for the alleged violation of the law by the defendant during his lifetime, and cannot be required to satisfy the judgment rendered against him. It is only the person adjudged guilty who can be punished, and a judgment cannot be enforced when the only subject-matter upon which it can operate has ceased to exist.”

In State v. Furth, 82 Wash. 665, 144 P. 907, 908, the Supreme Court of Washington, said: “The courts of the country, both state and federal, have, with marked unanimity, held that the death of the defendant in a criminal case pending appeal, in the absence of a statute expressing the contrary, permanently abates the action and all proceedings under the judgment. They make no distinction between a sentence of imprisonment and the imposition of a fine. The underlying principle is that the object of all criminal punishment is to punish the one who committed the crime or offense, and not to punish those upon whom his estate is cast by operation of law or otherwise.”

In United States v. Pomeroy, 152 F. 279, 282, the Circuit Court, S. D. of New York, said: “When a court imposes a fine for the commission of a crime, there is no idea of compensation involved. * * * But if the money had been collected before his death, he would have been punished. If it is collectednow, his family will be punished, and he will not be punished. In my opinion, therefore, this prosecution should be deemed ended and this judgment abated by the defendant's death. I have had some doubt whether this court should make an order declaring the judgment and the proceedings abated, or whether it should leave the matter to be determined in some other court, if an attempt should be made to collect the judgment. But it is certainly just to the representatives of the estate that the question should be determined, and I think it may as properly be determined by the court which rendered the judgment as by some other tribunal. * * * My conclusion is that an order should be entered declaring that...