State v. Wagoner, 48827

• Decision Date: 10 January 1956
• Docket Number: No. 48827,48827
• Citation: 247 Iowa 461,74 N.W.2d 246
• Parties: STATE of Iowa, Appellee, v. Homer Blaine WAGONER, Jr., Appellant.
• Court: Iowa Supreme Court

Page 246

74 N.W.2d 246

247 Iowa 461

STATE of Iowa, Appellee, v. Homer Blaine WAGONER, Jr., Appellant.

No. 48827.

Supreme Court of Iowa.

Jan. 10, 1956.

Dickens & Mickelson, Toledo, for appellant.

Dayton Countryman, Atty. Gen., Raphael R. R. Dvorak, Asst. Atty. Gen., and Keith Mossman, County Atty., Benton County, Vinton, for appellee.

OLIVER, Justice.

This is an appeal from the judgment in a criminal case. The indictment states the grand jurors: 'accuse Homer Blaine Wagoner, Jr., of the crime of Assault with intent to Commit a Felony and charge that the said Homer Blaine Wagoner, Jr., * * * did assault Jacqueline Mae Miller, on or about * * *, with intent to commit a felony contrary to and in violation of Section 694.5 of the 1954 Code of Iowa.' Defendant had testified before the grand jury that he had been drinking and did not recall what had happened upon the occasion in question. After the indictment was returned he appeared in open court with attorneys retained by him, and pleaded he was guilty of the offense charged therein. Thereupon judgment was rendered finding defendant guilty of the offense charged. He waived time and asked immediate sentence but the court continued the case five days for sentence. At the time fixed defendant again appeared in person and by his attorneys and the court adjudged that he be imprisoned in the penitentiary not more than five years. Thereafter defendant filed motion in arrest of judgment. This was overruled and defendant has appealed.

Section 694.5, Code of Iowa 1954, I.C.A., provides:

'If any person assault another with intent to commit any felony * * * where the punishment is not otherwise prescribed, he shall be imprisoned * * *.'

The indictment charges merely that defendant assaulted Jacqueline, 'with intent to commit a felony', without specifying what felony he intended to commit. Appellant contends there is no such statutory offense as assault with intent to commit a felony and hence the indictment is not merely defective, but fails to charge any specific offense, and is void.

He relies largely upon State v. Austin, 1899, 109 Iowa 118, 121, 122, 80 N.W. 303, in which the only offense charged in the indictment was carnal knowledge of an imbecile, and the jury found defendant guilty of assault with intent to commit a felony (as an included offense) without designating what felony. This court reversed, stating the only assault of which a defendant accused of a felony might be convicted (as an included offense) was an assault to commit the felony charged in the indictment.

In State v. Herzoff, 200 Iowa 889, 205 N.W. 500, there was an indictment for carnal knowledge of an imbecile and judgment upon a plea of guilty to the crime of assault with intent to commit a felony. In affirming, the court observed that all the proceedings antecedent to the judgment were regular and no exception was taken.

Neither of the foregoing decisions directly involved the validity of the indictment. Nor has our attention been called to any decision directly in point. However, in 1929, Chapter 266, Laws 43rd G.A., frequently called the 'Short Indictment Act' was enacted. As its name indicates, it provides for short indictments. In that connection a protection is afforded defendants by sections 4 and 5 of the Chapter, now sections 773.5 and 773.6, Code of Iowa 1954, I.C.A. Section 773.5 provides, in part, that, when an indictment with the minutes of the evidence, fails to inform the defendant of the particulars of the offense sufficiently to enable him to prepare his defense, or to give him such information as he is entitled to under the constitution of this state, he may request a bill of particulars. Section 773.6 states, if it appears from such bill that the particulars furnished do not constitute the offense charged, etc., the court on motion of the defendant shall set aside the indictment, etc. See State v. Powers, 239 Iowa 430, 433 to 436, 30 N.W.2d 476, and citations; State v. Engler, 217 Iowa 138, 145-147, 251 N.W. 88. No request for a bill of particulars was ever made in this case.

One of the permissible forms of indictment listed in section 33 of the Short Indictment Act, now section 773.34, Code of 1954, I.C.A., is: 'A. B. attempted to break and enter the dwelling house of C. D. with intent to commit a public offense * * *.' (Italics supplied.) In view of express statutory approval of the language, 'with intent to commit a public offense', we cannot agree that similar language, 'with intent to commit any felony', in an indictment returned under Code section 694.5, I.C.A., renders such indictment insufficient to charge an offense.

The decision in State v. Austin, 109 Iowa 118, 80 N.W. 303, 304, supra, is correct, but a concession therein, 'there is no such offense as 'an assault with intent to commit a felony'' is not a correct statement of the law under statutes now in effect.

We hold the indictment in the case at bar does charge an offense.

II. Code section 777.3, I.C.A. provides objections to the substance and form of the indictment are waived if not raised by demurrer before the jury is sworn. No demurrer was filed by appellant. He first questioned the sufficiency of the indictment and the procedure thereunder, by motion in arrest of judgment, made after judgment had...