State v. Medina, No. 53239

• Court: United States State Supreme Court of Iowa
• Writing for the Court: GARFIELD
• Citation: 165 N.W.2d 777
• Parties: STATE of Iowa, Appellee, v. Francisco Serrano MEDINA, Appellant.
• Docket Number: No. 53239
• Decision Date: 11 March 1969

Page 777

165 N.W.2d 777 STATE of Iowa, Appellee,
v.
Francisco Serrano MEDINA, Appellant. No. 53239. Supreme Court of Iowa. March 11, 1969.

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Galer & Galer and Donald E. Gartin, Mt. Pleasant, for appellant.

Richard C. Turner, Atty. Gen., William A. Claerhout, Asst. Atty. Gen., and Marvin V. Colton, County Atty., for appellee.

GARFIELD, Chief Justice.

Defendant Medina was charged by county attorney's information with the crime of resisting execution of process contrary to section 742.1 Iowa Code, 1966. Upon trial a jury found him guilty, his motion for new trial was overruled and he was fined $200 and costs. He has appealed. We affirm the sentence.

So far as applicable here the statute under which defendant was charged provides: '742.1 Resisting execution of process. If any person knowingly and willfully resist or oppose any officer of this state, or any person authorized by law, in serving or attempting to execute any legal writ, rule, order, or process whatsoever, * * * he shall be imprisoned in the county jail * * * or be fined * * *.'

I. The information as filed charges defendant committed the crime in that he 'did knowingly and willfully resist or oppose Richard L. King, Deputy Sheriff of Appanoose County in serving or attempting to

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serve A warrant of the Appanoose County District Court, * * *.' (emphasis added.)

During the trial, at the end of the testimony of the first of five defense witnesses (a medical doctor with psychiatric training who testified largely to defendant's mental condition) the county attorney was permitted to amend the information by substituting this for the language we have emphasized: 'an order to take into custody (defendant), which order was issued * * * by the Hospital Commission of Appanoose County, * * *.'

Permitting the amendment is not assigned or argued as error upon this appeal. See in this connection sections 773.42, .43, .45 and .46 Code 1966.

It will be noticed Code section 742.1, supra, applies where an officer or other authorized person is 'serving or attempting to execute any Legal writ, rule, order, or process whatsoever, * * *.' (emphasis added). The information as filed omits the word 'legal' in referring to the warrant and the amendment also omits it in referring to the order to take defendant into custody by the Hospital Commission.

Defendant first argues the court erred in denying his motion to direct verdict on the ground the state failed to charge or prove issuance of a 'legal' warrant. Code section 742.1; 67 C.J.S. Obstructing Justice § 14; and 39 Am.Jur., Obstructing Justice, section 22, page 516, are cited for the point that failure of the information to allege a legal process renders it fatally defective. The point is also made that the state has the burden to prove every element of an offense beyond a reasonable doubt, a matter which may be conceded.

Defendant's assigned error and first brief point in support of it are without merit. The contention was first raised in the motion to direct verdict at the close of the state's evidence in chief. Code section 777.2 provides that one of the two grounds of demurrer to an indictment is when it appears upon its face it does not substantially conform to the requirements of the Code. Section 777.3 states 'All objections to the indictment relating to matters of substance and form which might be raised by demurrer shall be deemed waived if not so raised by the defendant before the jury is sworn on the trial of the case.' These provisions apply to county attorneys' informations as well as to indictments. Sections 769.12, .13.

The claim the information was fatally defective in omitting the word 'legal' in referring to the warrant was not asserted in the manner or within the time required by the above statutes and is therefore deemed waived. State v. Gute, 252 Iowa 294, 297, 106 N.W.2d 417, 418 and citations; State v. Hurd, 260 Iowa 184, 147 N.W.2d 895, 896.

Further, we have held many times it is not reversible error to refuse to direct a verdict of not guilty at the close of the state's evidence. State v. Mabbitt, 257 Iowa 1063, 1065--1066, 135 N.W.2d 525, 527 and citations; State v. Everett, Iowa, 157 N.W.2d 144, 146 and citations. Also where, as here, a motion to direct at the close of the state's evidence is not renewed at the close of all the evidence it is deemed waived. State v. Stodola, 257 Iowa 863, 865, 134 N.W.2d 920, 921 and citation; State v. McElhaney, 261 Iowa 199, 202, 153 N.W.2d 715, 717.

Aside from the procedural matters we have mentioned it is clear the information as filed and as amended was not fatally defective in omitting reference to a 'legal' warrant or order. State v. Berenger, Iowa, 161 N.W.2d 798, 800--802 and statutes and precedents there cited.

It is true the evidence failed to show issuance of a warrant of the Appanoose district court as referred to in the information as filed but it did show before the case was closed issuance of an order purporting to be by the County Hospital Commission,

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which appeared to be regular and legal, to take defendant into custody.

II. Defendant's remaining assignments of error are based on the overruling of his motion for new trial, not only on the ground considered in Division I hereof, but on two additional ones. The first of these is that the state failed to prove a legal order for custody of defendant issued or authorized by the Hospital Commission of Appanoose County. It is said an order to take into custody a person alleged to be mentally ill is void ab initio unless authorized by such commission.

The statutory name of such a commission is commission of...