State v. Pelser

• Decision Date: 23 June 1917
• Docket Number: No. 31,571.,31,571.
• Citation: 182 Iowa 1,163 N.W. 600
• Parties: STATE v. PELSER.
• Court: Iowa Supreme Court

182 Iowa 1

163 N.W. 600

STATE

v.PELSER.

No. 31,571.

Supreme Court of Iowa.

June 23, 1917.

Appeal from District Court, Pottawattamie County at Avoca; O. D. Wheeler, Judge.

Defendant was indicted on the charge of incest. Trial to a jury. Verdict of guilty. Judgment on the verdict. Defendant appeals. Affirmed.Preston & Dillinger, of Avoca, and E. R. Acres, of Decorah, for appellant.

C. E. Swanson, Co. Atty., and E. R. Jackson, Asst. Co. Atty., both of Council Bluffs, and George Cosson, Atty. Gen., for the State.

GAYNOR, C. J.

The defendant was indicted on the charge of incest committed on his daughter, Iva Pelser, between the 1st day of September, 1912, and the 1st day of January, 1915, in the county of Pottawattamie, state of Iowa, and east of the west line of range 40.

It appears that the district court in and for Pottawattamie county convened at Avoca, which is east of range 40 in said county, on the 6th day of April, 1915, and on said day, at Avoca, the court impaneled a grand jury for the April term. On the 7th day of April, 1915, this grand jury returned the foregoing indictment. The caption to the indictment read, “District Court of Pottawattamie County, Iowa, at Council Bluffs.” On the 8th day of April, 1915, the defendant, Charles W. Pelser, appeared in person and by attorney, waived the reading of the indictment, and took time to plead, and on the 12th day of April appeared again in person and with his attorney, and entered a plea of not guilty. On April 16, 1915, the defendant appeared before the said district court, sitting at Avoca, and filed a motion for continuance, and by consent the same was sustained. The original indictment bears the following indorsement:

“Presented in open court by the foreman of the grand jury in the presence of his fellows, and filed with the minutes of testimony attached, this 7th day of April, 1915.”

On the 28th day of September, 1915, the county attorney filed an amendment to the indictment alleging that the incest charged in the indictment was committed on or about the 1st of January, 1915. On October 4, 1915, a jury was impaneled and sworn to try the cause, and thereafter evidence was taken. On the 7th day of October, 1915, the county attorney filed a second amendment to the indictment, striking out the words “Council Bluffs” in the caption of the indictment, and inserting in lieu thereof “Avoca.” To this amendment the defendant objected on several grounds, all of which need not be here set out. The grounds of objection, stated in a general way, are to the effect that it appeared upon the face of the indictment that the grand jury returning the indictment was impaneled by the district court of Pottawattamie county at Council Bluffs; that said grand jury had no jurisdiction to return an indictment, for the reason that on the face of the indictment the crime was committed east of the west line of range 40 in Pottawattamie county; that the grand jury west of range 40, at Council Bluffs, had no jurisdiction of the crime; and that the court at Avoca had no jurisdiction to hear the cause and try the defendant upon an indictment returned by the grand jury impaneled in the district court of Pottawattamie county, at Council Bluffs. This is, in substance, the basis of the defendant's complaint of this amendment. Permitting this amendment is the first error relied upon by the defendant for a reversal.

To better understand this controversy, it is necessary that we go back a bit and see on what such an objection rests.

Pottawattamie county is divided east and west for judicial purposes. The 20th General Assembly, by a special act (Acts 20th Gen. Assem. c. 198), provided for holding sessions of the old circuit court of Pottawattamie county at Avoca, in addition to sessions held at Council Bluffs, the county seat, and divided the county for judicial purposes by an imaginary line running between ranges 40 and 41, and giving to the Avoca court exclusive jurisdiction of all matters arising east of the line, and to the Council Bluffs court exclusive jurisdiction of all matters arising west of that line. The 21st General Assembly abolished the circuit court, placing all powers and duties of the circuit court upon the district court; and by section 5 of the act, chapter 134, provided for holding sessions of the district court at Avoca. The 22d General Assembly (Acts 22d Gen. Assem. c. 37) enlarged the jurisdiction of the Avoca court giving it jurisdiction over criminal matters, and providing for a grand jury in that court. The effect of these enactments is to give to the district court at Avoca exclusive jurisdiction over all offenses committed in Pottawattamie county east of range 40. Therefore the grand jury must be drawn from the territory, and must be impaneled by the court sitting at Avoca, and must be returned to and filed in that court. The district court at Council Bluffs has like jurisdiction and powers west of the line, and each court acts independently of the other.

[1] The district court sitting at Avoca has no jurisdiction to hear and determine the guilt or innocence of parties indicted by a grand jury sitting at Council Bluffs. The jurisdiction to hear and determine rests in the district court sitting as such at Council Bluffs. A grand jury impaneled by the district court sitting at Council Bluffs has no jurisdiction to indict for offenses committed outside the territorial limits of the jurisdiction of the district court sitting at Council Bluffs. So it follows that, if defendant's contention is true, that the indictment was found and returned by a grand jury impaneled by the district court sitting as such at Council Bluffs, the district court sitting at Avoca had no jurisdiction to try the defendant on that indictment. If it be true, as contended by defendant, that the indictmentcharged the commission of an offense within the territorial limits of the district court sitting at Avoca, then a grand jury impaneled at Council Bluffs had no right to return the indictment, for want of jurisdiction.

What are the facts disclosed by the record in this cause? The offense, if any was committed, was committed within the territorial limits of the district court sitting at Avoca. The defendant was indicted by a grand jury duly called and impaneled by the district court sitting at Avoca. The grand jury was drawn from the territory east of range 40 in Pottawattamie county. The indictment was returned to and filed in the district court sitting at Avoca. The facts therefore, do not support defendant's contention that the indictment was found at Council Bluffs by a grand jury impaneled by the district court at Council Bluffs for a crime committed within the territorial limits of the district court sitting at Avoca.

Did the county attorney have a right to amend the indictment under these facts, all of which appeared in the record at the time the amendment was offered?

[2] The state contends that the objection was filed too late. We pass this, however, preferring to decide the matter upon the issue involving the right to file it at all. Subdivision 7 of section 5289, Code Supplement 1913, provides that the county attorney may, at any time before or during the trial of the defendant upon indictment, amend the indictment so as to correct errors or omissions therein as to matters of form. As said before, the indictment was returned by a grand jury impaneled by the district court sitting at Avoca. The crime, if any committed, was within the jurisdiction of the Avoca court. The record shows that the grand jury that returned the indictment was impaneled by the district court at Avoca. The indictment shows that the offense was committed within their jurisdiction. The record shows every essential to give the grand jury sitting at Avoca jurisdiction over the offense, and to return an indictment therein. The record discloses every fact essential to give the Avoca district court jurisdiction to try and determine the guilt of the defendant upon the indictment.

The caption of the indictment, however, read, “State of Iowa v. Charles W. Pelser, District Court of Pottawattamie County, Iowa, at Council Bluffs, April Term, 1915.” “The grand jury of the county of Pottawattamie, in the name and by the authority of the state of Iowa, accuse Charles W. Pelser of the crime of incest committed as follows.” The indictment then proceeds to charge the defendant with the commission of the offense in Pottawattamie county east of the west line of range 40. It is apparent then that the caption was an error, a misstatement of fact, due, as we are informed, to the fact that in preparing the indictment for the grand jury the county attorney inadvertently used a form that was printed for and used in the Council Bluffs district. If the caption is a material part of the indictment, and the amendment affected a substantial right of the defendant, then there might be some basis for questioning the right of the county attorney to make the amendment under the statute hereinbefore referred to. But it has been held by this court that the caption is not a material part of the indictment, and there certainly was no prejudice to any substantial right of the defendant in allowing this amendment. See State v. Smith, 148 Iowa, 640, 127 N. W. 988. If no amendment had been filed, the matter covered by the offered amendment would not afford good ground for a motion in arrest of judgment.

The defendant in a criminal case is entitled to protect himself, and to this end may fence against punishment with all the instrumentalities which the law places at his command; but courts are not in these later days inclined to burnish his weapons or aid him in their use, nor will the courts hold him to have been fouled, unless the act complained of violates the letter and spirit of the law. The courts hold to the spirit of the law in protecting the substantial rights of the defendant, but not to the letter only, to afford him an avenue...