State v. Reinhard
| Decision Date | 21 June 1926 |
| Docket Number | No. 37745.,37745. |
| Citation | 202 Iowa 168,209 N.W. 419 |
| Parties | STATE v. REINHARD. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Clayton County; H. E. Taylor, Judge.
The defendant was charged by indictment with maintaining a liquor nuisance in Clayton county. There was a plea of not guilty and of former jeopardy and acquittal A verdict of guilty was rendered and judgment entered thereon. The defendant appeals. Reversed.Alex Holmes, of Strawberry Point, for appellant.
Ben J. Gibson, Atty. Gen., and Neill Garrett, Asst. Atty. Gen., for the State.
[1] The indictment under which the defendant was prosecuted was returned on February 25, 1925. It charged the offense as having been committed between the 20th day of August, 1924, and the 25th day of February, 1925. It was made to appear by the evidence that on October 15, 1924, the defendant was indicted by the grand jury of the same county for a like offense, alleged to have been committed between the 19th day of September and the 15th day of October, 1924. On February 17, 1925, such indictment was dismissed upon recommendation of the county attorney. The plea of former jeopardy and acquittal is predicated upon this former indictment. It appears from the record that the state used the same evidence before the grand jury in obtaining the last indictment that it had used in obtaining the first indictment, as regards the period of time antedating October 15, 1924. The question presented at this point for our consideration is whether the overlapping time included in the last indictment by specific dates renders the plea of former jeopardy available to the defendant in bar of further prosecution under such indictment. We have never hitherto had occasion to pass upon the precise question thus presented. In State v. McAninch, 172 Iowa, 96, 154 N. W. 399, Ann. Cas. 1918A, 559, a kindred question was very fully considered. The question here presented was incidentally considered in that case by way of differentiation, and authorities touching the question were extensively reviewed. Though the plea of former jeopardy in that case was rejected, yet its differentiations tend to support the contention of the defendant herein. The authorities from other jurisdictions cited in the opinion give direct support to the defendant's present contention. See Commonwealth v. Dunster, 145 Mass. 101, 13 N. E. 350; Commonwealth v. Robinson, 126 Mass. 259, 30 Am. Rep. 674; State v. Brownrigg, 87 Me. 500, 33 A. 11. We think it must be conceded that the weight of authority and reason sustains the defendant's plea of former jeopardy, as interposed herein.
The evidence introduced in the first instance covered the period preceding the first indictment as well as the period subsequent to the date thereof. The evidence relating to the first period was more significant and weighty than that pertaining to the second, and was sufficient to have supported a conviction under the second indictment.
[2] The trial court recognized the merit of the plea of former jeopardy to the extent of the period of time covered by the first indictment. It therefore excluded from the consideration of the jury the evidence covering such prior period. We are confronted, therefore, with the further question whether such segregation and exclusion of evidence cured the infirmity of the prosecution and avoided the plea of former jeopardy. There was no amendment of the indictment. It is not necessary for us, therefore, to determine whether there could have been an amendment. The effect of the ruling of the court was to put the defendant upon trial upon an amended indictment. We think it sufficient at this point to say that the evidence thus excluded by the court was a large and substantial part of the evidence which was produced before the grand jury and upon which the grand jury acted. It cannot be known that the grand jury would have returned an indictment at all, if such evidence had been withheld from its consideration. Nor can we see any fair reason why so obvious a violation of the defendant's rights should be cured so perfunctorily. The dismissal of the first indictment operated under the law as the equivalent of an acquittal and became a complete bar to further prosecution for the alleged offense of nuisance committed prior to October 14, 1924. Code, § 14027.
If for the purpose of an indictment the state in its prosecution may ignore this statute and may use the same evidence with additional later evidence to procure a new indictment, without incurring other disadvantage than to have the evidence excluded upon the trial, it nullifies the statute at least in part and results in manifest unfairness of procedure. We can conceive of no legitimate reason why a prosecuting official should be aided or encouraged thus to transcend the statute. This feature of the indictment is not the result of mere error or inadvertence. It is a direct challenge to the statute; a reassertion of guilt notwithstanding the dismissal; and its only possible function is to press the former acquittal as a reason for present conviction.
[3][4] It is fundamental that only one offense may be charged in a single count in an indictment. Code, § 13737. The indictment fixes the identity of the offense as one and indivisible. And this is so even though the offense be a continuing one, such as the maintenance of a nuisance and though it be evidenced by a series of acts extending over a period of...
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