State v. Little

• Decision Date: 13 December 1929
• Docket Number: No. 39875.,39875.
• Citation: 210 Iowa 371,228 N.W. 67
• Parties: STATE v. LITTLE.
• Court: Iowa Supreme Court

210 Iowa 371

228 N.W. 67

STATE

v.LITTLE.

No. 39875.

Supreme Court of Iowa.

Dec. 13, 1929.

Appeal from District Court, Mahaska County; J. G. Patterson, Judge.

The defendant was tried on an indictment charging him with the crime of perjury and acquitted by direction of the court. The state appeals. Affirmed.

Evans, J., dissenting.John Fletcher, Atty. Gen., and Blanchard W. Preston, Co. Atty., of Oskaloosa, for the State.

McCoy & McCoy and C. C. Orvis, all of Oskaloosa, for appellee.

STEVENS, J.

The indictment in this case charged the defendant with the crime of perjury committed upon the trial of a case in the district court entitled State of Iowa v. DeLong. The indictment in that case charged the defendant with operating a motor vehicle while intoxicated. The basis of the charge of perjury is that the defendant, when called as a witness before the grand jury, testified that he saw the defendant get out of his car and go into a restaurant where he remained for a few minutes, and that when he returned he could smell intoxicating liquor on his breath, and that he “staggered.” As a witness upon the trial he testified that, when he saw the defendant DeLong on the same occasion, he “stumbled.” The change in the testimony from the use of the word “staggered” before the grand jury to “stumbled” upon the trial of the case constitutes the basis for this prosecution. Aside from two or three rulings of the court upon the admissibility of testimony offered by the state, which are too clearly correct to require discussion, the only proposition urged for review is the ruling of the court sustaining the motion of the defendant to direct the jury to return a verdict of acquittal. As some possible confusion has found its way into the decisions of this court as to the scope of the review permitted on appeals by the state, we deem it proper to go somewhat at length into this question.

Section 13994 of the Code of 1927 provides that either the defendant or the state may appeal.

Section 14012 limits somewhat the scope of the review when the appeal is by the state. This section is as follows: “If the state appeals, the supreme court cannot reverse or modify the judgment so as to increase the punishment, but may affirm it, and shall point out any error in the proceedings or in the measure of punishment, and its decision shall be obligatory as law.”

These sections are almost identical in language with the corresponding sections in the Code of 1860, § 4926; Code of 1873, § 4539; and the Code of 1897, § 5463.

Commencing with State v. Kinney, 44 Iowa, 444, appeals by the state presenting questions of law for the future guidance of courts have always been sustained. The court in the cited case, referring to section 4539 of the Code of 1873, said: “Under this provision the Supreme Court cannot interfere with the judgment of the District Court on an appeal of this character. The effect of the decision in this court is nothing more than an authoritative exposition of the law to be followed by the inferior courts. This provision applies to all appeals by the State, whether they be from judgments rendered upon trials on the merits, or judgments upon demurrers and motions.”

The rule thus stated has been followed and reaffirmed in many later cases. State v. Mackey, 82 Iowa, 393, 48 N. W. 918;State v. Jackson, 128 Iowa, 543, 105 N. W. 51;State v. Gilbert, 138 Iowa, 335, 116 N. W. 142;Town of Scranton v. Hensen, 151 Iowa, 221, 130 N. W. 1079;State v. Fairmont Creamery Co., 153 Iowa, 702, 133 N. W. 895, 42 L. R. A. (N. S.) 821;State v. Johnson, 157 Iowa, 248, 138 N. W. 458;State v. Meyer, 203 Iowa, 694, 213 N. W. 220.

The same rule was recognized in each of the following cases which will serve to illustrate the nature of the questions which may be reviewed by this court on appeals by the state. State v. Keeler, 28 Iowa, 551;State v. Beckey, 79 Iowa, 368, 44 N. W. 679;State v. Ford, 161 Iowa, 323, 142 N. W. 984;State v. Ward, 75 Iowa, 637, 36 N. W. 765;State v. Alverson, 105 Iowa, 152, 74 N. W. 770;State v. Sexsmith, 202 Iowa, 537, 210 N. W. 555.

There is considerable diversity in the statutes of the different states permitting the state to appeal, but, so far as the decisions have been brought to our attention, the rule quoted above is universally followed by the courts of this country. State v. Parker, 5 Ala. App. 231, 59 So. 741;State v. Moody, 150 N. C. 847, 64 S. E. 431;State v. Murrey, 30 Wash. 383, 70 P. 971;State v. Kemp, 5 Wash. 212, 31 P. 711;State v. Hart, 88 N. J. Law, 48, 95 A. 756;State v. Morris (Ala. Sup.) 39 So. 589;Territory v. Norris, 12 Ariz. 176, 100 P. 459;State v. Clerkin, 58 Conn. 98, 19 A. 517;State v. Frisbee, 8 Okl. Cr. 406, 127 P. 1091;People v. Damron, 212 N. Y. 256, 106 N. E. 67.

In State v. Miller, 81 Iowa, 72, 46 N. W. 751, in which the state was the appellant, one of the rulings of the trial court complained of was the sustaining of a motion by the court for a directed verdict. This court declined to pass upon this question in that case, but indicated that, under some circumstances, it might do so.

We said in State v. Meyer, supra, that, on an appeal by the state, we will only discuss and dispose of those questions which are proper to be determined as precedents in future cases. However, as a majority of the court in that case desired to express an opinion as to the propriety of the court's ruling on the motion to direct a verdict, the cause was reversed. The rule announced above was adhered to in each of the following cases: State v. Mackey, 82 Iowa, 393, 48 N. W. 918;State v. Kulough, 133 N. W. 706;State v. Gilbert, 138 Iowa, 335, 116 N. W. 142, and other cases cited supra.

The court in State v. Johnson, 200 Iowa, 324, 204 N. W. 273,State v. Drain, 205 Iowa, 581, 218 N. W. 269, and State v. Woodruff (Iowa) 225 N. W. 254, reviewed and passed upon the ruling of the court sustaining motions for directed verdicts. In each of these cases, questions of law properly reviewable by this court were presented, and the decision was general in character and fully went into all of the propositions argued on behalf of the state. In none of these cases did the court pass upon the question as to the scope of the review permitted. So far as we are familiar with the decisions of the courts in other jurisdictions, the rule is universal that the court will not, on appeal by the state, review error alleged upon a ruling directing an acquittal. Commonweath v. Brand, 166 Ky. 753, 179 S. W. 844;State v. Glenn Lumber Co., 83 Kan. 399, 111 P. 484;State v. Savery, 126 N. C. 1083, 36 S. E. 22, 49 L. R. A. 585;People v. Tomsky, 20 Cal. App. 672, 130 P. 184;State v. Buechler, 57 Ohio, 95, 48 N. E. 507;State v. Morrison, 165 Ind. 461, 75 N. E. 968;State v. Miller, 82 Wash. 477, 144 P. 693;People v. Knowles, 27 Cal. App. 498, 155 P. 137.

The acquittal of the defendant rendered him immune from further prosecution for the same offense. A decision by this court finding error in the ruling on the motion to direct a verdict, even conceding that a question of law is thereby presented, would be a mere abstract declaration of no possible value to the court in this or any future case.

It is well said by the Supreme Court of Arkansas in State v. Spear, 123 Ark. 449, 185 S. W. 788, 789, that: “It is clear that appeals in felony cases are not allowed by the state except in cases...