State v. Veterans of Foreign Wars, Post 1856

• Decision Date: 21 September 1937
• Docket Number: 43916.
• Citation: State v. Veterans of Foreign Wars, Post 1856, 274 N.W. 916, 223 Iowa 1146 (Iowa 1937)
• Parties: STATE v. VETERANS OF FOREIGN WARS, POST 1856.
• Court: Iowa Supreme Court

274 N.W. 916

223 Iowa 1146

STATE v. VETERANS OF FOREIGN WARS, POST 1856.

No. 43916.

Supreme Court of Iowa.

September 21, 1937

Appeal from District Court, Webster County; H. E. Fry, Judge.

This is a certiorari proceeding questioning the validity of an order made by Judge Fry at the June, 1936, term of court, setting aside the dismissal of an indictment at the May, 1936, term reinstating the case for trial.

Writ sustained.

Mitchell & Loth, of Fort Dodge, for petitioner.

R. A Knudson, Co. Atty., of Fort Dodge, and H. J. Roelofs, Sp Asst. Atty. Gen., for respondent.

MITCHELL, Justice.

On the 31st day of December, 1935, a grand jury in Webster county returned an indictment against the Veterans of Foreign Wars, Post 1856, in which indictment they accused the defendant of maintaining a liquor nuisance as defined by section 1921-f60 of the 1935 Code of Iowa. Notice was duly served upon the officers of the organization.

On the 4th day of May, 1936, the then county attorney for Webster county filed a motion to dismiss the indictment, part of which is as follows: " The Veterans of Foreign Wars, Post 1856, is a voluntary, unincorporated association. Under the law of this state you may indict and bring into Court an individual or a corporation, but no provision is made for bringing into Court a voluntary, unincorporated association. There is no one in Court to answer to this indictment and under the law as it now stands there is no way of bringing anyone into Court to answer to this indictment. At the time the indictment was returned by this grand jury it was thought by the grand jury and by me as their legal advisor, that this organization was in fact incorporated."

On the 28th day of May, 1936, H. E. Fry, judge of the district court, to whom the aforesaid motion was presented, sustained the motion and entered an order, dismissing the indictment.

The county attorney, on the 13th day of June, 1936, discovered that he had made a mistake as to the status of the defendant; that in fact it was incorporated; and that an indictment against it would lie. He immediately filed a motion to set aside the order of dismissal, and, on the 17th day of June, 1936, Judge Fry sustained the motion and entered an order, setting aside the dismissal and reinstating the indictment. The defendant, Veterans of Foreign Wars, Post 1856, commenced this proceeding in certiorari, questioning the validity of the order setting aside the dismissal of the indictment and reinstating the same.

The question with which we are confronted here is whether, where an indictment is dismissed through mistake on the part of the county attorney, it can be reinstated on motion.

There is no claim of any fraud on the part of any one connected with this proceeding. The mistake was due to the fact that the indictment was returned against the Veterans of Foreign Wars, Post 1856. The name of the corporation is " Walter Porson Post, No. 1856, of the Iowa Department, Veterans of Foreign Wars," and under this name the incorporation is recorded in the office of the county recorder of Webster county, Iowa.

There are three periods of the prosecution in which a nolle prosequi may be entered, namely, before the jury is impaneled, while the case is before the jury, and after the verdict. The dismissal in this case was entered before the jury was impaneled. It contained no reservation again to proceed.

Early in the history of this State this question was before this court. In the case of State v. Shilling, reported in 10 Iowa 106, the then Chief Justice, speaking for the court, said: " This conviction was clearly irregular and unwarranted. The right of the State to again indict or file a second information for the offenses specified in the first and second counts, is not denied after entering a nolle prosequi as to them. But there is no principle justifying the trial of the defendant upon these counts after their withdrawal in the same proceeding, or on the same information. For this proceeding these counts ceased to have any vitality, any legal existence, and to try the defendant upon them, was to try him as it were without an indictment or information."

It is true, there is some dispute in the authorities in regard to this proposition but the weight of authority follows this early Iowa case.

In Commonwealth v. Buck, 285 Mass. 41, 188 N.E. 613, 614, the Massachusetts court said: " It is plain that the district attorney had power to appear for the Commonwealth in the District Court, and where as here the grand jury had returned an indictment against the defendant for the same offense charged in the District Court he could enter a nolle prosequi of the complaint, the effect of which without trial would be like dismissing a complaint. The defendant is not acquitted of the crime charged against him; he is exempted from liability only on that complaint."

In the case of State v. Dix, 18 Ind.App. 472, 48 N.E. 261, 262, the Indiana court said:

" The ordinary dismissal of a criminal proceeding against a defendant by the prosecuting attorney is equivalent to a nolle prosequi. * * * ‘ We do not doubt that, by

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