State v. Parker

Decision Date22 July 1885
Citation66 Iowa 586,24 N.W. 225
PartiesSTATE v. PARKER.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from Carroll district court.

Defendant was indicted for murder in the first degree, and, upon trial, was convicted of an assault with intent to do a great bodily injury, and from a judgment upon this conviction appeals to this court.W. G. Thompson and W. H. Stivers, for appellant, James C. Parker.

A. J. Baker, Atty. Gen., for the State.

BECK, C. J.

1. The defendant having been put upon trial on the indictment, a jury was impaneled and sworn, and the state examined one witness, who was cross-examined by defendant. It then appearing that none of the state's witnesses had been examined before the grand jury returning the indictment, which had been found upon the minutes of the evidence as returned by the committing magistrate, as authorized by section 3, c. 13, Acts Eighteenth General Assembly, which repealed Code, § 4289, thereupon the district attorney, under Code, § 4421, asked leave to introduce the evidence of the witnesses against defendant, showing by affidavit that he was not the district attorney when the indictment was found, and that he was not informed the witnesses did not testify before the grand jury, and he believed that they did; such belief being based upon the fact that their names were indorsed upon the indictment. He states in his affidavit that his ignorance of the facts of the case, and his belief that the witnesses had testified before the grand jury, were the reasons that induced him not to give the notice required by Code, § 4421. The district court sustained the application of the district attorney, and required the defendant, as is required by Code, § 4421, to elect either to allow the cause to be continued or the witnesses to testify. To this ruling defendant excepted, and moved the court to direct the jury to return a verdict of not guilty. The motion was overruled; thereupon the defendant elected that the cause be continued, and it was, accordingly, so ordered, and the jury was discharged. At the next term defendant pleaded specially the facts of the proceeding at the prior term, as above recited, alleging that he had “once been put in jeopardy of his life and liberty for the same offense,” and “had been duly acquitted of all the offenses set out in the indictment.” The matter then pleaded was held by the district court, by an instruction to the jury, not to be a defense to the indictment. This ruling is the foundation of the first objection urged by defendant to the conviction. It now demands our attention.

2. Counsel insist that defendant was put in jeopardy of life and liberty by the first abortive trial; that such jeopardy began when the jury was sworn to try the case; and that the subsequent conviction of defendant upon another trial is in conflict with the fifth amendment of the constitution of the United States, which declares that no person shall be subject for the same offense to be twice put in jeopardy. It is probable, but the point we do not decide, that it would be found, upon consideration, that this provision of the federal constitution is applicable alone to the administration of the criminal laws of the United States, and was not intended to limit the power of the states by prescribing a rule directing the manner of the execution of their criminal statutes. See Barron v. Mayor of Baltimore, 7 Pet. 247;Withers v. Buckley, 20 How. 84. And it would appear that the facts of this case are not within the prohibition of article 1, § 12, of our own constitution, which declares that “no person shall, after acquittal, be tried for the same offense.” The defendant was not acquitted upon the mistrial; the constitutional prohibition does not,...

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3 cases
  • Housman v. Commonwealth
    • United States
    • Kentucky Court of Appeals
    • 7 Mayo 1908
    ...of the text is fully borne out by the adjudicated cases where the statutes are similar to those in force here. Thus in State v. Parker, 66 Iowa 586, 24 N.W. 225, under a statute just the same as ours sustaining a for an assault with intent to commit great bodily injury under an indictment f......
  • State v. Vance
    • United States
    • Utah Supreme Court
    • 16 Noviembre 1911
    ... ... shows that an assault with intent to commit murder is ... necessarily included within the principal charge of murder in ... case that acts of violence are included within the charge ... The same conclusion is reached by the Supreme Court of Iowa ... in the case of State v. Parker, 66 Iowa 586, 24 N.W ... 225. To the same effect are the cases of Thomas v ... State, 125 Ala. 45, 27 So. 920; Peterson v ... State, 12 Tex. Ct. App. 650; Davis v. State, 45 ... Ark. 464; Bush v. Commonwealth , 78 Ky. 268, ... and other cases that it is unnecessary to cite. Under ... ...
  • State v. Superior Court for King County
    • United States
    • Washington Supreme Court
    • 2 Noviembre 1927
    ... ... that they amply support the rule above stated. Among others ... that hold this doctrine, see State v. Slack, 6 Ala ... 676; People v. Curtis, 76 Cal. 57, 17 P. 941; ... People v. White, 68 Mich. 648, 37 N.W. 34; State ... v. Parker, 66 Iowa, 586, 24 N.W. 225 ... Both ... the common law and our federal and state constitutional ... provisions are designed for the protection of the rights and ... privileges of any citizen charged [145 Wash. 454] with crime ... To give these guaranties a ... ...

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