State v. Solberg

• Decision Date: 05 April 1932
• Docket Number: 41075
• Citation: 242 N.W. 84,214 Iowa 333
• Parties: STATE OF IOWA, Appellee, v. CARL SOLBERG, Appellant
• Court: Iowa Supreme Court

242 N.W. 84

214 Iowa 333

STATE OF IOWA, Appellee, v. CARL SOLBERG, Appellant

No. 41075

Supreme Court of Iowa, Des Moines

April 5, 1932

Appeal from Cedar District Court.--ATHERTON B. CLARK, Judge.

The defendant was charged by county attorney's information with the crime of forgery. He pleaded guilty to the offense as charged and was sentenced to a term in the penitentiary. He appeals.

Affirmed.

Paysoff Tinkoff, for appellant.

John Fletcher, Attorney-general, and William M. Dallas, County Attorney, for appellee.

FAVILLE J. WAGNER, C. J., and STEVENS, DE GRAFF, and ALBERT, JJ concur.

OPINION

FAVILLE, J.

It appears from the record that on or about the 17th day of April, 1931, a county attorney's information was filed in the district court of Cedar County, Iowa, charging the appellant herein with the crime of uttering a forged instrument, said information alleging that said act was committed in violation of section 13140 of the Code. It appears that the appellant was arraigned on said charge and entered a plea of not guilty, and that counsel was appointed to represent him and that a jury was impanelled for the trial of said cause, and apparently the proceedings then terminated and the jury was discharged. Thereupon the county attorney filed what he designated as an "amended and substituted information," accusing appellant of the crime of forgery in violation of section 13139 of the Code. The information was duly sworn to and the judge entered an order approving that the cause should be prosecuted by information. Whereupon the appellant appeared in open court with his counsel and pleaded guilty to the charge of forgery as charged in said so-called "amended and substituted information," and thereupon the appellant was sentenced by the court.

I. The appellant contends that the information which was designated as an amended and substituted information was filed in violation of the statute, and that therefore the court had no jurisdiction of the appellant to impose sentence under such amended and substituted information upon his plea of guilty.

Appellant relies upon Code section 13747, which is as follows:

"Such amendment shall not be ordered when it will have the effect of charging the accused with an offense which is different than the offense which was intended to be charged in the indictment as returned by the grand jury."

The difficulty with the appellant's position at this point is that, except for the recital in the caption to the information, there is nothing to indicate that it even purported to be an amendment to any former information. The record fairly discloses that the information to which the appellant pleaded guilty was not an amendment of a former information, but was an entirely new, separate, and distinct information, which charged a separate and distinct offense. In other words, there was no attempt to change in any way the terms or provisions of any existing information. It is fairly deducible from the record that the information that had been filed against the appellant was dismissed after a jury had been impanelled to try it, and that an entirely new information was filed with the approval of the judge or the court, charging the appellant with a different crime, and to this information the appellant pleaded guilty.

The provisions of the statute with regard to the amendment of an information, and the cases cited by appellant's counsel in respect to the amendment of indictments, have no application to the facts in the instant case. The uttering of a forged instrument and the crime of forgery are two separate and distinct crimes. It appears that the appellant was charged in one information with the crime of uttering a forged instrument. There was no attempt made to change this information in any respect or to charge any new offense by an amendment of said information. That information was entirely disposed of, and a new information, charging a new offense, was filed. This was a proper proceeding. The mere fact that in the caption the county attorney denominated the information an amended and substituted information does not make it an amendment to an existing information if it was not in fact such.

There is no merit in appellant's contention at this point.

II. The information in this...