State v. Olsen

• Decision Date: 22 May 1917
• Docket Number: 31507
• Citation: State v. Olsen, 180 Iowa 97, 162 N.W. 781 (Iowa 1917)
• Parties: STATE OF IOWA, Appellee, v. O. C. OLSEN, Appellant
• Court: Iowa Supreme Court

162 N.W. 781

180 Iowa 97

STATE OF IOWA, Appellee, v. O. C. OLSEN, Appellant

No. 31507

Supreme Court of Iowa, Des Moines

May 22, 1917

Appeal from Winneshiek District Court.--W. J. SPRINGER, Judge.

DEFENDANT appeals from a judgment of conviction founded upon a charge of the practice of medicine without a license.--Appeal Dismissed.

Appeal Dismissed.

E. W Cutting and Goheen & Goheen, for appellant.

H. M Havner, Attorney General, H. H. Carter. Assistant Attorney General, and C. N. Houck, County Attorney, for appellee.

GAYNOR C. J. WEAVER, PRESTON and STEVENS, JJ., concur.

OPINION

GAYNOR, C. J.

On the 21st day of October, 1913, the grand jury of Winneshiek County, Iowa, returned an indictment against the appellant, charging him with unlawfully assuming the duties of a physician without having obtained a certificate as required by law.

On the 1st day of November, 1913, appellant filed his motion for a continuance, alleging that he was unable to attend court without serious injury to his health. On the same day, the State filed its resistance to the motion, and asked that a commission of physicians be appointed to examine him. By consent of parties, a commission was appointed, and on the 12th day of November, reported that, in its opinion, the defendant could attend court without detriment to his health. The record does not disclose any ruling on this motion.

On November 22, 1913, by consent of attorneys for appellant and the State, the presiding judge, together with one of the attorneys for appellant, the sheriff and the county attorney, went to the home of the appellant at Calmar, Iowa. (Calmar was not the county seat.) There the appellant announced that he pleaded guilty to the charge made against him. The court accepted the plea, and, having his calendar with him, thereupon made the following entry, which was afterwards spread upon the records of the court:

"Court met at Calmar, Iowa. The defendant appears in open court with his attorney. Says he is rightly named in the indictment and is duly arraigned. The defendant also in person and by his attorney pleads that he is guilty of the charge made in the indictment, to wit, practicing as a physician without first having obtained a license. Judgment upon plea that the defendant is guilty of practicing as a physician without first having obtained a license. Defendant waives time for judgment. It is ordered and adjudged that defendant pay a fine of $ 300 and costs of this action, and that, in default of payment thereof, that the defendant be confined in the jail at Winneshiek County, Iowa, until said fine is paid, not exceeding at the rate of $ 3 1/3 per day for each day's confinement. Bail on appeal fixed at $ 1,000."

Nothing further was done until the 22d day of November, 1914, at which time the defendant filed a motion for a new trial, in which he alleged his physical condition and said that, in view of the prejudiced position in which he was placed by the unfair and biased report of the examining physicians, his counsel recommended that he plead guilty, rather than to further endanger his life by being brought into court; that he was strongly urged by his counsel to plead guilty; that he maintained, and still maintains, that he did not violate the law and was not guilty, and was forced to plead guilty, and he asked that the records of the court made in the cause be set aside; that the verdict of guilty and the judgment thereon be set aside, and the cause stand as if no proceedings had been had or made of record therein, and the defendant given an opportunity to defend against said indictment. The State filed a resistance to this. Afterwards, on the 23d day of September, 1915, this motion for a new trial was overruled.

On the 20th day of March, 1916, the defendant served and filed his notice of appeal. The right of appeal is purely statutory. To invoke the appellate jurisdiction of this court, the statute must be followed. Section 5448 of the Code Supplement, 1913, provides:

"The mode of reviewing in the supreme court any judgment, action or decision of the district court in a criminal case is by appeal. An appeal can only be taken from the final judgment, and within six months thereafter."

The appeal from the judgment in this case, heretofore set out, was not taken within six months after the final judgment. It is claimed that the appeal is from this judgment. The appellate action of this court is invoked, and we are asked to review that judgment. It makes no difference whether the judgment be void or voidable. Appeal may be taken from an absolutely void judgment. See Petty v. Durall, 4 Greene 120, in which it is said:

"The right to appeal is by no means limited to...