State v. Rivers

• Decision Date: 19 April 1882
• Citation: State v. Rivers, 58 Iowa 102, 12 N.W. 117 (Iowa 1882)
• Parties: STATE OF IOWA v. RIVERS.
• Court: Iowa Supreme Court

58 Iowa 102

12 N.W. 117

STATE OF IOWA

v.RIVERS.

Supreme Court of Iowa.

Filed April 19, 1882.

Appeal from Dallas district court.

On the tenth day of December, 1878, the defendant was arraigned in Polk county district court upon an indictment for obtaining money and property by false pretences. On the next day he filed a motion to set aside the indictment, which motion was overruled. On the twelfth day of the same month he filed a demurrer to the indictment, which was overruled, and on the same day he entered a plea of not guilty. On the sixteenth of the same month he filed a petition for a change of venue, which was granted, and the cause was transferred to the Dallas district court, and a bail-bond was executed. At the October term, 1879, of the Dallas district court the cause was tried to a jury and the defendant found guilty, and the verdict was set aside and a new trial granted on his motion. The cause was called for trial again at the October term, 1880, when it was ascertained that the indictment had been lost or stolen. On motion of the district attorney a copy of the indictment was substituted and made of record, and a trial was had which resulted in a verdict of guilty. A motion in arrest of judgment and a motion for a new trial were overruled, and judgment was pronounced upon the verdict. The defendant appeals.C. C. Cole and A. R. Smalley, for appellant.

Smith McPherson, Atty. Gen., for the State.

ROTHROCK, J.

1. The defendant resisted the motion to substitute the copy of the original indictment, and, in his motions in arrest of judgment and for a new trial, he again raised the question of the power of the court to make the substitution, and he now strenuously insists that there was no such power, and no warrant in the law for putting him upon trial upon a copy of the indictment. Some question is made as to whether the district court of Dallas county had jurisdiction at any time of the cause. It is said that there is no record that an indictment was ever found, and no record showing that the indictment, with the other original papers, or certified copies thereof, were ever received and filed by the clerk of the district court of Dallas county. It does appear of record, however, that the defendant appeared in the Polk district court, and was arraigned upon an indictment; that he filed a motion to set it aside, and demurred to it, and filed his petition for a change of venue, and executed a bail-bond; that he appeared at the proper time, and was tried upon the original indictment in the district court, and was convicted, and a new trial was granted upon his motion. After this trial the indictment was lost or stolen.

There appears to be a certified copy of what purports to be all the record entries in said cause in Polk county. This was filed in the office of the clerk in Dallas county on the tenth day of March, 1879. It does not appear of record that the original indictment was certified by the clerk of the Polk district court, and there is no record of the filing of it in the clerk's office in Dallas county. We think that, notwithstanding these omissions, the district court of Dallas county acquired jurisdiction of the cause. The indictment was of record in Polk county. It was an original paper filed in that court, and, being such, it was part of the record. Code, § 196. This original paper was placed among the files in Dallas county, and by being among the files it became part of the record there without any indorsement thereon by the clerk of that court. Indeed, a failure of the clerk in this respect in filing the indictment in the first instance will not invalidate the proceedings, (State v. Glover, 3 G. Greene, 249;State v. Shepard, 10 Iowa, 126;) and no record of the filing of the indictment other than the indorsement of the clerk is necessary or proper; at least, not until after the arrest of the defendant. Mockledge v. State, 1 Iowa, 167. Whatever right the defendant may have had to compel a correction of the record to comply with these requirements of the statute, which appears to us to be merely directory, was, in our opinion, waived by submitting to the first trial without objection thereto. The main question, however, on this branch of the case, is, had the court power to substitute a copy of the lost or stolen indictment and put the defendant upon trial? The defendant's contention is that he could be tried only on the “identical original indictment found by the grand jury of Polk county.”

In Gananay v. State, 22 Ala. 772, the defendant was indicted, and the cause was continued at several successive terms of the court. At the term at which the cause was called for trial the indictment could not be found, it having been lost or abstracted. The court permitted a copy to be substituted, and the defendant was tried and convicted. It was held by a majority of the court that this was erroneous. It was conceded that the court might order an amendment or substitution of anything which it has the power to make or order to be made; but that, as no power but the grand jury can make an indictment or direct one to be made, the court cannot supply one which has been lost or destroyed.

In the case of Bradshaw v. Com. 16 Gratt. (Va.) 507, it was also held that it was error to substitute a copy of an indictment which had been lost or destroyed. The court, in its reasoning, follows the case of Gananay v. State, supra.

In State v. Harrison, 10 Yerg. 542, the defendant was indicted, and the indictment was lost or mislaid during the trial. The prosecution moved to make a copy of the indictment a part of the cause. It was held that this might be done if the court acted from its recollection of the contents of the indictment alone, but that a substitution of a copy could not be made upon proof by affidavits, independent of the recollection of the judge, of the contents of the lost instrument.

In Mount v. State, 14 Ohio, 295, the indictment was lost or stolen after verdict of guilty. The court say: “It was not indispensable to the sentence that the original indictment should be before the court. If lost or destroyed by accident, or by the fraud or design of the plaintiff in error, or stolen by him or another, and the prosecution were not in fault, its place might have been supplied by a copy like any other record or pleading.”

In Buckner v. State, 56 Ind. 208, the record showed the following entry: “ State of Indiana v. Thomas J. Buckner. Selling without license. Indictment burned.” The record did not contain any indictment, and the court said: “If the defendant was tried upon a certified copy of the indictment, that copy constituted a part of the record and should have been contained in the transcript. We must presume that the transcript is complete and perfect.” It was held that if the indictment had been destroyed the defendant might have been tried upon a copy of the record, if it had been recorded.

In Bradford v. State, 54 Ala. 230, the defendant was put upon trial upon an indictment. After all the evidence was introduced, and the attorney for the commonwealth was about to commence his argument to the jury, it was discovered that the indictment had been lost during the trial. Counsel for the defendant consented that “the indictment might be substituted, and the trial proceed under the substitute.” The trial then proceeded precisely as though the original indictment had not been lost, and the defendant was found guilty. It was held that this was no error; that the court had the inherent power to preserve its records by substitution, if necessary; and that, as the defendant had demurred to the indictment, and pleaded not guilty to it, he thereby admitted that it was an indictment. This case does not overrule Gananay v. State, supra, but distinguishes it upon the ground that in that case the defendant had not been arraigned, and had not pleaded to the indictment.

In State v. Simpson, 67 Mo. 647, the defendant was tried upon a copy of an indictment which was substituted for the original, which was lost. The court approve of the practice, but reverse the case upon the ground that there was no evidence that the indictment had ever been made of record. The power to substitute a copy of a lost indictment is recognized in 1 Bishop, Crim. Proc. § 1215.

The foregoing are the authorities cited by counsel for the defendant and for the state upon this question. It will be seen that...