State v. Thompson

• Decision Date: 05 October 1895
• Citation: 64 N.W. 419,95 Iowa 464
• Parties: STATE v. THOMPSON.
• Court: Iowa Supreme Court

95 Iowa 464

64 N.W. 419

STATE

v.THOMPSON.

Supreme Court of Iowa.

Oct. 5, 1895.

Appeal from district court, Polk county; S. F. Balliett, Judge.

The defendant was indicted for burglary, was convicted, and appeals. Affirmed.Henry S. Wilcox, for appellant.

Milton Remley, Atty. Gen., and Jesse A. Miller, for the State.

KINNE, J.

1. A motion is filed by the appellee to strike from the files the transcript and amended abstract filed by appellant. It appears that appellee's amended abstract was served upon appellant April 24, 1895. Appellee's argument was served upon appellant May 16, 1895, and the cause submitted May 27, 1895. After the cause had been fully argued and submitted for an opinion, and on May 29, 1895, a transcript was filed, and on May 31, 1895, an amended abstract. We think this motion should be sustained. If a party may be permitted to file an amended abstract and a transcript two or four days after a cause is fully submitted, he may file it at any time after submission, and the business of the court would be greatly impeded, as well as increased. Counsel also have a right to suppose that when a cause is submitted no other paper will be filed therein by either party without the consent of the opposing party and the permission of the court, granted when the submission of the cause is taken. We are not aware that it has ever been held permissible to file such papers in a case after final submission. It is true that some years ago the court, by order made when the cause was submitted, and with the consent of parties, permitted parties within a certain fixed time to file papers, even after a cause had been submitted. This practice was found to lead to confusion, and often causes were thus submitted which were never fully argued. This practice was abandoned, and the submission of no case is taken in which the record is not complete, at least during the term at which the submission is made. In this case there was no permission to file the amended abstract and transcript after submission of the cause. There was no consent of counsel that it might be done; and, even if there had been, it would have been unavailing without the permission of the court. The motion will be sustained. See State v. Windahl (decided at this term) 64 N. W. 420.

2. The facts, as disclosed in the record which is left for consideration, are that in April, 1893, the defendant was indicted for burglary, committed by breaking and entering a chicken house. June 1, 1893, the cause was called for trial, and defendant appeared by his attorney. The jury was impaneled and sworn to try the cause. County attorney read the indictment to the jury, and stated that the defendant pleaded not guilty, whereupon the attorney for the defendant stated to the court that the defendant had not been arraigned, and had not pleaded to the indictment, and asked time to plead. The court then adjourned until the next morning. The record further shows that the cause had, with the consent of all parties, been set for trial, and witnesses subpœnaed for both parties, several days prior to the day of trial, and that other arrangements had been made for the trial of this cause. The court held “that the defendant has waived arraignment, and is deemed to have pleaded not guilty.” The court then ordered defendant arraigned, which was done, and he was given 30 minutes in which to plead; the trial to then proceed. At the expiration of the time given to plead, a plea of not guilty was entered, the jury resworn, the indictment re-read, the defendant's plea stated to the jury, and the trial proceeded with, all against the defendant's objection. He was found guilty.

3. The only questions presented upon this appeal are whether the court erred in ordering an arraignment of the defendant, and in entering the plea without giving the defendant further time to plead. It will be observed that the court found that the defendant had “waived arraignment.” This the statute provides that the defendant may do. Code, § 4327. In Powell v. U. S., Morris (Iowa) 17, it is said: “But it is a general rule that the total want or omission of an arraignment will be a sufficient ground for reversing a judgment. * * * Had the record stated that the defendant had regularly appeared and pleaded, an arraignment would have been implied by that act. As, however, there is no evidence from the record that the defendant pleaded, that he was arraigned, or that he even personally appeared, the judgment must be reversed.” In State v. Winstrand, 37 Iowa, 112, it is held...