State v. Rinehart
| Decision Date | 10 December 1963 |
| Docket Number | No. 51261,51261 |
| Citation | 125 N.W.2d 242,255 Iowa 1132 |
| Parties | The STATE of Iowa, Appellee, v. Michael Tim RINEHART, Appellant. |
| Court | Iowa Supreme Court |
Johnson & Flattery, Fort Dodge, for appellant.
Evan Hultman, Atty. Gen., John H. Allen, Asst. Atty. Gen., and Gordon L. Madson, Calhoun County Atty., for appellee.
On the evening of April 9, 1963, the body of Maxine Ann Hemmingsen, a young woman 19 years of age, was found on a gravel road in the outskirts of the town of Manson. She was dead of stab wounds, three in number. Two of these were in her back; the third was in the front, and penetrated her heart. Miss Hemmingsen's automobile was standing nearby.
Very shortly after the body was found, suspicion was directed toward the defendant, a boy of 15 years who resided with his parents in Manson. He was taken to the police station and questioned by peace officers. This resulted in a statement by the defendant in which he said that he saw Miss Hemmingsen come from a laundromat, he entered her car and asked her for a ride home and after the automobile had gone a short distance he took a hunting knife from his pocket and compelled her to drive to the place where her automobile was found. The statement admits that he stabbed her and then left the scene. A preliminary charge of murder was filed, and the Calhoun Distrct Court appointed Charles F. O'Connor, an experienced attorney of Manson, to represent the defendant.
Mr. O'Connor investigated the case, and consulted with the defendant and with his parents. On July 29, Jack Gray, a lawyer practicing at Rockwell City, the Calhoun County seat, was appointed as co-counsel. Mr. Gray is also an attorney of considerable experience, including service as county attorney of Calhoun County. He also consulted with the defendant and with his parents.
The defendant was examined both at the Iowa State Mental Health Institute at Cherokee and at the psychiatric hospital of the State University of Iowa at Iowa City, and their findings were before the court at all material times.
On August 12, 1963, a county attorney's information was filed. It charged the defendant with the crime of murder, committed by killing Maxine Ann Hemmingsen, with malice aforethought, contrary to section 690.1 of 1962 Code of Iowa, I.C.A. The defendant, appearing with both of his then counsel, entered his plea of guilty, after hearing was found guilty of murder of the second degree, waived time, and was sentenced to confinement in the Iowa State Penitentiary at Fort Madison for the period of his natural life.
On August 16 next, the defendant, through his present counsel, filed his motion in arrest of judgment, alleging several errors in the proceedings which led to his conviction, judgment and sentence. After a further hearing, the motion was denied, and from this ruling we have the present appeal. Further facts will be stated as we consider the various contentions made.
I. Four errors are assigned. The first asserts that at the time of sentence there was no valid charge of murder against the defendant. It appears that at the arraignment on August 12, the trial court inquired whether the defendant wished to enter his plea at that time, or wished time. Mr. O'Connor replied by moving to strike the words 'malice aforethought' from the information, and said that subject to the court's ruling 'we are ready to enter a plea.' The court said it would withhold ruling until it heard evidence as to the degree. The defendant then stood and upon the court's inquiry, entered his plea of 'Guilty'. A hearing was then had, with witnesses called, the autopsy report was received in evidence, and at the conclusion the court announced: 'The court finds the defendant guilty of second degree murder, and the motion to strike the words 'with malice aforethought' is sustained.'
After a recess, Mr. O'Connor announced: '* * * the defense consents to the sentencing at this time, Your Honor.' A question of allocution arises at this point which will be considered in a later division of this opinion. Passing this question at this point, the court then heard both attorneys then representing the defendant urging leniency, and the county attorney requesting the maximum penalty. The court then said: 'The court then finds that it was a brutal and beastly murder and that there was no excuse for it and that the boy should not be turned loose.' Further:
It is now the contention of the defendant that when words 'with malice aforethought' were stricken from the information there was no charge of murder remaining. Malice aforethought, it is urged, is a necessary element of murder, and an indictment or information which does not charge it does not charge murder. So, the argument goes, the court had no right to sentence the defendant for an offense not charged in the information.
The reasoning is at first impression plausible, but it will not bear analysis in view of our interpretation of the law as expressed in our decisions. The allegation 'with malice aforethought' was no more than surplusage in the information. The defendant was charged with the crime of murder, in plain terms; and the code section which was alleged to have been violated, 690.1, was also set out. Section 773.3, Code of 1962, I.C.A., says: 'Contents of indictment. The indictment may charge, and is valid and sufficient if it charges, the offense for which the accused is being prosecuted in one or more of the following ways:
'1. By using the name given to the offense by statute. * * *
'The indictment may refer to a section or subsection of any statute creating the crime charged therein, and in determining the validity or sufficiency of such indictment regard shall be had to such reference.'
We have followed and applied this statute in State v. Kulow, Iowa, 123 N.W.2d 872, 874, State v. Eichler, 248 Iowa 1267, 1275, 83 N.W.2d 576, 580, and other cases. In State v. Kulow, supra, we have the converse of the situation before us in the case at bar. There the indictment as originally drawn charged the offense by the name given it by statute. Immediately before the commencement of the trial the state was permitted to amend by adding words defining the offense. The defendant excepted, alleging that the original indictment did not charge an offense, and he should at least have been granted a continuance to meet the supposed new charge. We said the indictment sufficiently charged the offense in the first instance, and the added words were no more than surplusage.
So it is here. The information as it stood before the words 'with malice aforethought' were stricken charged the defendant with murder, and he was still charged with murder when they were deleted. The record does not show why they were eliminated. No grounds were stated in the motion, and the court gave no reason for striking them. But in any event they added nothing to the charge, and it remained as a good and sufficient charge of murder after they were gone.
If it be thought that the defendant was in some way surprised by the conviction of murder of the second degree after the quoted words were deleted, the answer is plain. Our discussion in Division III will show that the defendant and his counsel expected, in fact hoped for, a finding of second degree murder. There is much evidence as to this. They were interested in eliminating a finding of first degree murder. The court had made a finding of second degree before it struck the words, and neither defendant nor his counsel made any protest at any time. Counsel did in fact address themselves to the court asking for leniency in the sentence to be imposed because of the finding of second degree. The record is clear that no one was surprised or made any objection to the court's holding at this point. The assignment is without merit.
II. Next the defendant asserts he has a defense to the charge, and should be allowed to withdraw his plea of guilty for the purpose of proving it. It is extremely doubtful whether this question may be raised by a motion in arrest of judgment. This is defined by Code section 788.1, I.C.A., and the only ground is that 'upon the whole record no legal judgment can be pronounced.' State v. Kirkpatrick, 220 Iowa 974, 976, 263 N.W. 52, 53; State v. Stennett, 220 Iowa 388, 395, 260 N.W. 732, 736. If the motion be considered as an application to withdraw the plea of guilty, it was not timely. After the plea and before judgment, the court may in its discretion permit withdrawal; but after judgment it is too late. State v. Harper, 220 Iowa 515, 525, 258 N.W. 886, 891; State v. Tracy, 219 Iowa 1412, 1415, 261 N.W. 527, 529.
However, passing any technical reasons, it may be observed that if the mere fact that a defendant who has pleaded guilty and been sentenced may then be permitted to withdraw his plea because he has, or claims to have, a defense, he would then be permitted to gamble on the sentence; and if it did not please him, to demand a trial. A defendant, accused of a serious offense no matter how obviously guilty, under Iowa law is entitled to a jury trial; and few indeed are the cases in which he could not attempt some sort of defense. But whether for technical or meritorious reasons, w...
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