State v. Little, No. 39875.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtSTEVENS
Citation210 Iowa 371,228 N.W. 67
PartiesSTATE v. LITTLE.
Docket NumberNo. 39875.
Decision Date13 December 1929

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.

[228 N.W. 67]

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.

[228 N.W. 68]

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....

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10 practice notes
  • State v. Traas, No. 45565.
    • United States
    • United States State Supreme Court of Iowa
    • June 17, 1941
    ...to pass upon errors respecting matters of fact which could be of no benefit in the trial of criminal cases in the future. State v. Little, 210 Iowa 371, 228 N.W. 67;State v. Friend, 213 Iowa 544, 239 N.W. 132;State v. Tibbetts, 213 Iowa 552, 239 N.W. 133;State v. Niehaus, 209 Iowa 533, 228 ......
  • State v. Wickett, No. 45705.
    • United States
    • United States State Supreme Court of Iowa
    • October 21, 1941
    ...of law. Cases in which the foregoing propositions have been passed upon are State v. Woodruff, 208 Iowa 236, 225 N.W. 254;State v. Little, 210 Iowa 371, 228 N.W. 67;State v. Friend, 213 Iowa 544, 239 N.W. 132;State v. Traas, 230 Iowa 826, 298 N.W. 862;State v. Meyer, 203 Iowa 694, 213 N.W. ......
  • State v. Marcum, No. 48297
    • United States
    • United States State Supreme Court of Iowa
    • January 12, 1954
    ...State v. Traas, 230 Iowa 826, 298 N.W. 862, and cases cited therein. But this right is subject to certain limitations. State v. Little, 210 Iowa 371, 228 N.W. 67, 69, wherein we 'The purpose of section 14012 (now 793.20) can hardly be misunderstood. It is to secure review by the higher cour......
  • State v. Rasmus, No. 49456
    • United States
    • United States State Supreme Court of Iowa
    • June 3, 1958
    ...or a guide, to trial courts in the future. State v. Haesemeyer, 248 Iowa 154, 79 N.W.2d 755, 757, and citation; State v. Little, 210 Iowa 371, 375, 228 N.W. 67. See, also, State v. Wickett, 230 Iowa 1182, 1185-1186, 300 N.W. 268, 269-270, and It appears the state would be entitled, upon thi......
  • Request a trial to view additional results
10 cases
  • State v. Traas, No. 45565.
    • United States
    • United States State Supreme Court of Iowa
    • June 17, 1941
    ...to pass upon errors respecting matters of fact which could be of no benefit in the trial of criminal cases in the future. State v. Little, 210 Iowa 371, 228 N.W. 67;State v. Friend, 213 Iowa 544, 239 N.W. 132;State v. Tibbetts, 213 Iowa 552, 239 N.W. 133;State v. Niehaus, 209 Iowa 533, 228 ......
  • State v. Wickett, No. 45705.
    • United States
    • United States State Supreme Court of Iowa
    • October 21, 1941
    ...of law. Cases in which the foregoing propositions have been passed upon are State v. Woodruff, 208 Iowa 236, 225 N.W. 254;State v. Little, 210 Iowa 371, 228 N.W. 67;State v. Friend, 213 Iowa 544, 239 N.W. 132;State v. Traas, 230 Iowa 826, 298 N.W. 862;State v. Meyer, 203 Iowa 694, 213 N.W. ......
  • State v. Marcum, No. 48297
    • United States
    • United States State Supreme Court of Iowa
    • January 12, 1954
    ...State v. Traas, 230 Iowa 826, 298 N.W. 862, and cases cited therein. But this right is subject to certain limitations. State v. Little, 210 Iowa 371, 228 N.W. 67, 69, wherein we 'The purpose of section 14012 (now 793.20) can hardly be misunderstood. It is to secure review by the higher cour......
  • State v. Rasmus, No. 49456
    • United States
    • United States State Supreme Court of Iowa
    • June 3, 1958
    ...or a guide, to trial courts in the future. State v. Haesemeyer, 248 Iowa 154, 79 N.W.2d 755, 757, and citation; State v. Little, 210 Iowa 371, 375, 228 N.W. 67. See, also, State v. Wickett, 230 Iowa 1182, 1185-1186, 300 N.W. 268, 269-270, and It appears the state would be entitled, upon thi......
  • Request a trial to view additional results

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