State v. Schrup

• Decision Date: 31 December 1940
• Docket Number: 45264.
• Citation: 295 N.W. 427,229 Iowa 909
• Parties: STATE v. SCHRUP.
• Court: Iowa Supreme Court

295 N.W. 427

229 Iowa 909

STATE v. SCHRUP.

No. 45264.

Supreme Court of Iowa.

December 31, 1940

Appeal from District Court, Dubuque County; Hugh Stuart, Judge.

Defendant was charged in a county attorney's information with having possession of obscene pictures in violation of section 13190, 1939 Code. Defendant appealed from a judgment entered against him after his plea of guilty.

Reversed and remanded.

Kenline Roedell & Hoffmann, of Dubuque, and T. S. Stevens, of Des Moines, for appellant.

John M. Rankin, Atty. Gen. of Iowa, John L. Duffy, Co. Atty., of Dubuque, Dubuque County, Iowa, and Jens Grothe, Asst. Atty Gen., for appellee.

STIGER, Justice.

Defendant pleaded guilty to the charge in the information on March 1 1940. Prior to the announcement of the judgment by the court on March 2, the written judgment of the court had been entered in the record book as contemplated by section 10830. A few minutes after the judgment was spread on the record book, the judgment was pronounced by the court. Defendant then attempted to withdraw his plea but the court said that the withdrawal was too late. Defendant then filed a demurrer to the information which alleged that Chapter 177 of the 21st General Assembly, of which section 13190 is a part, was unconstitutional. Though the court had refused to permit defendant to withdraw his plea, the court permitted a hearing on the demurrer after which it was overruled. Defendant then filed a motion in arrest of judgment which contained substantially the same allegations as the demurrer. This motion was overruled.

It is unnecessary to pass on the rulings of the trial court as defendant's proposition that the information did not charge an offense must be sustained.

It is our duty, under section 14010, to examine the record and to enter such judgment on the record as the law demands.

The material portion of section 13190 reads: " 13190 Obscene literature-articles for immoral use . Whoever sells, or offers for sale, or gives away, or has in his possession with intent to sell, loan, or give away any obscene, lewd, indecent, lascivious, or filthy book pamphlet, paper, drawing, lithograph, engraving, picture, photograph, writing, card, postal card, model, cast, * * * shall be guilty of a misdemeanor and be fined not more than one thousand nor less than fifty dollars, or be imprisoned in the county jail not more than one year, or both."

The information accused def...