State v. Robinson

• Decision Date: 11 March 1969
• Docket Number: No. 52905,52905
• Citation: 165 N.W.2d 802
• Parties: STATE of Iowa, Appellee, v. Lloyd U. ROBINSON, Appellant.
• Court: Iowa Supreme Court

Page 802

165 N.W.2d 802

STATE of Iowa, Appellee, v. Lloyd U. ROBINSON, Appellant.

No. 52905.

Supreme Court of Iowa.

March 11, 1969.

Gene L. Needles, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., James C. Sell, Asst. Atty. Gen., and Ray A. Fenton, County Atty., for appellee.

BECKER, Justice.

Defendant was charged with breaking and entering and with being an habitual criminal. He was first tried before a jury for breaking and entering and was then tried before a different jury on the habitual criminal charge. A guilty verdict was returned on both charges. Defendant was sentenced to 25 years in the state penitentiary at Fort Madison and now appeals.

I. The first two errors deal entirely with procedural matters occasioned by the habitual criminal charge and will be disposed of before consideration of the evidence in the case. While recidivist statutes have long been with us our present procedure for determining whether defendant is an habitual criminal, as defined by our statutes, is fairly new. Section 773.3, Code of Iowa, 1966 reads: 'Allegations of prior convictions. If the offense charged is one for which the defendant if convicted, will be subject by reason of the Code, to an increased penalty because of prior convictions, the allegation of such convictions, if any, shall be contained in the indictment. A supplemental indictment shall be prepared for the purpose of trial of the facts of the current offense only, and shall satisfy all pertinent requirements of the Code, except that it shall make no mention, directly or indirectly, of the allegation of the prior convictions, and shall be the only indictment read or otherwise presented to the jury prior to conviction of the current offense. The effect of this section shall be to alter the procedure for trying, in one criminal proceeding, the offenses appropriate to its provisions, and not to alter in any manner the basic elements of an offense as provided by law.'

Section 773.3 was added to the Code by the legislature at the 1965 session. For reasons to be noted it specified a distinct change in the method of charging and trying a defendant as an habitual criminal.

The two informations filed by the State here were not in literal compliance with the statute. The statute directs use of a complete information, Including the habitual criminal allegations, to inform the defendant of the charge; and use of a shortened information Excluding the habitual criminal allegations, to inform the jury of the main charge against defendant at time of trial. Here the State filed a proper information charging breaking and entering but did not add the habitual criminal charge. At the same time the State filed an information charging defendant as an habitual criminal. The second information did not refer to the breaking and entering charge.

We are satisfied defendant and his counsel were not mislead. The filing of the two informations at the same time, involving correlative factors of the same prosecution, could not be construed as an attempt to charge two different crimes. We have repeatedly held an allegation of prior conviction does not create a separate crime but is made only for the purpose of the penalty imposed. State v. Eichler, 248 Iowa 1267, 1273, 8o N.W.2d 576 and citations.

Election to proceed by information plus the use of two informations in the manner described resulted in some confusion by the court clerk in numbering the various files. Neither this numbering confusion nor the word 'supplemental' added to the breaking and entering charge made any difference in the merits of the case or in accomplishment of a fair trial.

The habitual criminal information would have been subject to timely demurrer under section 777.2, Code, 1966 which reads: 'Grounds of demurrer. The defendant may demur to the indictment when it appears upon its face, either: (1) That it does not substantially conform to the requirements of this code, or (2) That the indictment contains matter which, if true, would constitute a legal defense or bar to the prosecution.' Had the demurrer been timely filed the State could have amended either one or both of the two informations so as to literally comply with the procedure outlined in section 773.3. This right to amendment is recognized in State v. Houston, Iowa, 158 N.W.2d 158, 160 and citations.

Defendant filed no demurrer prior to entering a plea of not guilty to the breaking and entering charge but elected to wait to file the demurrer to the habitual criminal charge after being found guilty of breaking and entering and before the trial on the habitual criminal charge. Section 777.3 of our Code reads: 'Failure to demur--waiver. All objections to the indictment relating to matters of substance and form which might be raised by demurrer shall be deemed waived if not so raised by the defendant before the jury is sworn on the trial of the case.'

Two quotations from State v. Gute, 252 Iowa 294, 296, 297, 106 N.W.2d 417, 418 are apt here: 'In this connection it will be observed section 769.12, Code of Iowa, 1958, I.C.A. provides that statutes applicable to indictments shall, as nearly as may be, apply to county attorney's informations. Code section 777.2 authorizes a demurrer to an indictment when it appears upon its face that it does not substantially conform to the requirements of the Code. Section 777.3 provides all objections to the indictment relating to matters of substance and form, which might be raised by demurrer shall be deemed waived if not so raised before the trial jury is sworn. * * *.

'We are satisfied the rule is here applicable and that appellant may not now complain of the substance or form of the county attorney's information.'

II. We think the result reached in Division I is correct not only from an examination of the interrelationship of the Code sections cited but also because of the evident purpose of our new Code section 773.3, State v. Bishop, 257 Iowa 336, 340, 132 N.W.2d 455.

Monroe Com. Sch. Dist. v. Marion Co. Bd., 251 Iowa 992, 998, 103 N.W.2d 746, 749 states: 'In construing a statute, the court must look to the object to be accomplished, the evils and mischief sought to be remedied, or the purpose to be subserved, and place on it a reasonable or liberal construction which will best effect its purpose rather than one which will defeat it.'

Prior to the enactment of section 773.3 all indictments and informations charging defendants with conviction of prior offenses recited the prior offenses as part of the charges. Under our procedure these charges were read to the jury in full. The jury was thus immediately informed of defendant's prior criminal record although such evidence would be otherwise inadmissible except for impeachment purposes. This procedure was attacked in State v. Griffin, 257 Iowa 852, 853, 855, 135 N.W.2d 77, 78: '* * *. It is contended reading the information including the prior convictions at the commencement of...