State v. Smith

• Decision Date: 16 May 1893
• Citation: 55 N.W. 198,88 Iowa 178
• Parties: STATE v. SMITH.
• Court: Iowa Supreme Court

88 Iowa 178

55 N.W. 198

STATE

v.SMITH.

Supreme Court of Iowa.

May 16, 1893.

Appeal from district court, Tama county; L. G. Kinne, Judge.

Defendant was indicted, tried, and convicted of the crime of obtaining money by false pretenses, and judgment entered against him, from which he appeals.Tom H. Milner, for appellant.

John Y. Stone, Atty. Gen., and Thos. A. Cheshire, for the State.

GIVEN, J.

1. The following questions presented upon this appeal arise upon the following proceedings had in the case, as shown by the record: The defendant was held on preliminary examination to appear at the February term, 1891, of the district court for Tama county, to answer a charge of obtaining money by false pretenses. He appeared and waived challenge to the grand jury. On the 24th day of February, 1891, said grand jury returned an indictment against the defendantcharging him with the crime of obtaining money by false pretenses, alleging it to have been committed on the 17th day of December, 1891. The defendant was put upon trial at said term on this indictment, and at the conclusion of the evidence on the part of the state he moved for a verdict of not guilty, for the reasons that the indictment charged the crime to have been committed on an impossible date. The motion was overruled, and, as it was apparent on the face of the indictment that it charged the crime to have been committed on a date in the future, the court discharged the trial jury, had the grand jury, then in session, brought in, and called upon the defendant to examine and challenge the grand jury, which he did under protest. Upon examination each member of the panel that returned the indictment was excused upon defendant's challenge because of having formed an opinion, and, as each one was excused, the sheriff, in obedience to the order of the court, summoned qualified persons to fill the panel until the panel was complete. The grand jury thus selected being duly sworn and charged, the case against the defendant was submitted to it upon the papers returned by the justice of the peace. On March 3, 1891, said grand jury returned an indictment against the defendant for said offense, charging that he committed it on the 17th day of December, 1890. On May 19, 1891, appellant's motion to set aside said indictment because of the former indictment and proceedings being overruled, he pleaded not guilty, and also pleaded that he had been once in jeopardy on said charge, and acquitted because of the proceedings had on the first indictment. Appellee demurred to said last plea, and, the demurrer being sustained, the case was tried upon the issue of guilty or not guilty, and a verdict of guilty returned, upon which judgment was pronounced.

2. In this case we have the anomaly of a defendant insisting upon the sufficiency of an indictment against himself. Appellant contends that the first indictment returned against him was sufficient, and it was therefore error to discharge the trial jury to resubmit the case to the grand jury, and to put him upon trial a second time. The indictment returned February 24, 1891, charged the crime to have been committed on the 17th day of December, 1891. The time is nowhere else stated. Appellant's counsel contend that this allegation of time is immaterial; that the true time could be proven under the allegation, and therefore the indictment was sufficient. Such was certainly not the view entertained when the motion for a verdict was urged. Appellant cites section 4306 of the Code, which provides that no indictment is insufficient “for want of an allegation of the time or place of any material fact, when the time and place have once been stated.” The section is inapplicable. This is not an omission to state the time when it had once been stated, but stating an impossible time. He also cites section 4305, which provides that the indictment is sufficient if it can be understood therefrom “that the offense was committed some time prior to the finding of the indictment.” It cannot be so understood from this indictment. It states but one date; a date not prior, but subsequent, to the...