State v. White, No. 57565

CourtUnited States State Supreme Court of Iowa
Writing for the CourtRAWLINGS
Citation234 N.W.2d 146
PartiesSTATE of Iowa, Appellant, v. Jess WHITE, Appellee.
Docket NumberNo. 57565
Decision Date15 October 1975

Page 146

234 N.W.2d 146
STATE of Iowa, Appellant,
v.
Jess WHITE, Appellee.
No. 57565.
Supreme Court of Iowa.
Oct. 15, 1975.

Richard C. Turner, Atty. Gen., William R. Stengel and John D. Hudson, Asst. Attys. Gen., for appellant.

Dickinson, Throckmorton, Parker, Mannheimer & Raife, by Michael J. Galligan and Richard A. Malm, Des Moines, for appellee.

Considered en banc.

RAWLINGS, Justice.

By county attorney's information Jess White was charged with unlawful gift-giving. Trial court sustained defendant's 'motion to quash' and thereupon entered a dismissal. State appeals. We reverse.

In material part, this is the instantly involved information:

'(T)he said Jess White, on or about the 1st day of August, A.D., 1973, in the County of Warren and State of Iowa, did offer and give one camping lantern to Bob Campbell, Warren County Assistant Shop Superintendent, as a gift and gratuity for ordering certain chemicals for Warren County, From Jess White, a salesman for Share Corporation, in violation of Section 741.1, 1973 Code of Iowa.'

Page 147

Subsequent to the filing of said charge White unsuccessfully challenged same by demurrer and amendment thereto. He also entered the aforesaid 'motion to quash' thereby asserting, in substance (1) vagueness of Code § 741.1 and (2) it embodies a constitutionally proscribed arbitrary classification thus denying him equal protection of law. This motion was sustained on the ground last above urged. As previously indicated, such points up the only issue here raised by State on its appeal.

I. Before reaching the question so posed we must consider an ancillary problem here presented by defendant.

Absent a cross-appeal White attacks trial court's order overruling the above noted demurrer. More specifically, he maintains it should have been sustained because 'the information and attached minutes did not allege that the alleged gift was given to a 'public officer' as is required for violation of Section 741.1, Code of Iowa'.

At the outset it is questionable whether such issue is property before us for review since State's appeal is confined, as aforesaid, to propriety of trial court's order sustaining defendant's 'motion to quash'. See State v. Chadroff, 234 So.2d 412, 415 (Fla.App.1970); State v. McKinney, 212 So.2d 761 (Fla.App.1968); State v. McInnes, 133 So.2d 581, 583 (Fla.App.1961). See also Deaver v. Armstrong Rubber Co., 170 N.W.2d 455, 465 (Iowa 1969); People v. Carriger, 37 Mich.App. 605, 195 N.W.2d 25, 28--29 (1972). Compare 24 C.J.S. Criminal Law § 1632 with 5 C.J.S. Appeal and Error § 1498 and 5 Am.Jur.2d, Appeal and Error, §§ 707--708.

We need not, however, resolve the above procedural question at this time. Assuming, arguendo, the foregoing 'public officer' issue is properly raised for appellate determination, it must be resolved adverse to defendant White. See State v. Prybil, 211 N.W.2d 308, 311 (Iowa 1973); cited in State v. Books, 225 N.W.2d 322, 323--324 (Iowa 1975).

Furthermore, defendant's attempt to buttress his demurrer by reference to minutes attached to the information was a futile gesture. See State v. Batchelor, 180 N.W.2d 457, 458--459 (Iowa 1970).

No error attended the overruling of defendant's demurrer.

II. As a prefare to further consideration of this case it is to be understood defendant's aforesaid 'motion to quash' will be here treated as a demurrer. See State v. Berenger, 161 N.W.2d 798, 800 (Iowa 1968); Code §§ 777.1--777.2.

III. State's sole contention in support of a reversal is, as aforesaid, to the effect trial court erred in adjudging § 741.1...

To continue reading

Request your trial
2 practice notes
  • State v. Brandt, Nos. 59122-59124
    • United States
    • United States State Supreme Court of Iowa
    • April 20, 1977
    ...such motions have been considered as such. State v. Herkleman, 251 N.W.2d 214, 215 (Iowa, filed March 16, 1977); State v. White, 234 N.W.2d 146, 147 (Iowa 1975); State v. Bergenger, 161 N.W.2d 798, 800 (Iowa But here the essence of defendant's motion to dismiss or quash informations is that......
  • State v. Herkleman, Nos. 58621
    • United States
    • United States State Supreme Court of Iowa
    • March 16, 1977
    ...argument that defendant may not raise his res judicata claim in a motion to quash. We have previously held in State v. White, Iowa, 234 N.W.2d 146, 147, under similar circumstances that we treat a "motion to quash" as a demurrer and consider the merits of defendant's contention. State's arg......
2 cases
  • State v. Brandt, Nos. 59122-59124
    • United States
    • United States State Supreme Court of Iowa
    • April 20, 1977
    ...such motions have been considered as such. State v. Herkleman, 251 N.W.2d 214, 215 (Iowa, filed March 16, 1977); State v. White, 234 N.W.2d 146, 147 (Iowa 1975); State v. Bergenger, 161 N.W.2d 798, 800 (Iowa But here the essence of defendant's motion to dismiss or quash informations is that......
  • State v. Herkleman, Nos. 58621
    • United States
    • United States State Supreme Court of Iowa
    • March 16, 1977
    ...argument that defendant may not raise his res judicata claim in a motion to quash. We have previously held in State v. White, Iowa, 234 N.W.2d 146, 147, under similar circumstances that we treat a "motion to quash" as a demurrer and consider the merits of defendant's contention. State's arg......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT