State v. Young
| Decision Date | 17 October 1911 |
| Parties | STATE OF IOWA v. GEORGE YOUNG, Appellant |
| Court | Iowa Supreme Court |
Appeal from Madison District Court.--HON. EDMUND NICHOLS, Judge.
THE defendant was convicted of having committed perjury, and appeals.
Affirmed.
Emory Nicholson and A. W. Wilkinson, for appellant.
George Cosson, Attorney General, and John Fletcher, Assistant Attorney General, for the State.
The defendant has been tried three times. The first indictment charged him with having given whisky to Will Gordon, a person in the habit of becoming intoxicated. On trial he was acquitted. At the same term of court he was indicted for having committed perjury during the above trial, in that he had falsely testified that he had neither given whisky to said Gordon in a certain barn or paintshop on the 14th day of November, 1909. Though he was acquitted of the charge of having furnished his neighbor whisky, he was found guilty of having falsely testified that he had not done so. But on motion in arrest of judgment the verdict was set aside, and the case submitted to another grand jury. A second indictment charging the same offense was returned, and he was again found guilty and judgment entered accordingly. The appeal is from this conviction.
I. Appellant contends that the court erred in not passing on the ninth ground of the motion in arrest of judgment, and in not discharging him, for that the issue alleged was not involved in nor the alleged false testimony material on the trial of the indictment charging him with giving whisky to said Gordon. That indictment alleged the giving to have been in the county generally, and it is said that, even though the accused did falsely testify that he had not given Gordon whisky in the barn or paintshop, such evidence was immaterial, for that it did not appear that any one had testified otherwise. If this were true, his testimony would not have been in conflict with any evidence introduced by the state, but it would have been material as tending to show that he had not furnished the whisky in the county. This becomes apparent in looking at the result had he testified to the truth as claimed by the state; i.e., that he had given Gordon whisky at one of the places mentioned. Had he done so his testimony would not only have been material, but likely conviction would have followed. Plainly enough, then, his denial that he had given the whisky at the place mentioned should be regarded as material.
Even were this not so, however, the point could not properly be raised on motion in arrest of judgment. Section 5426 provides that such a motion may be granted (1) upon any ground which would have been ground for demurrer (2) when upon the whole record no legal judgment can be pronounced. It is needless to say that the insufficiency of evidence is not ground for demurrer. Nor do we think the evidence a part of the "record," as that term is used in this statute. It only becomes such when duly certified and filed as a bill of exceptions for the purposes of appeal. Their view is confirmed by section 5424 of the Code, making the insufficiency of the evidence one of the grounds for new trial, and farther by the overwhelming weight of authority declaring that neither the admissibility of evidence nor its insufficiency nor the correctness of the instructions can be challenged by motion in arrest of judgment. State v. McCool, 34 Kan. 617, (9 P. 745); State v. Gerrish, 78 Me. 20, (2 A. 129); Green v. State (Tex. Cr. App.) 29 S.W. 1072; Bright v. State, 90 Ind. 343; Powe v. State, 48 N.J.L. 34, (2 A. 662); State v. Washington, 104 La. 443, (29 So. 55, 81 Am. St. Rep. 141). See cases collected in 2 Ency. Pleading & Practice 813, and 12 Cyc. 759. The record in a criminal case ordinarily is understood to be the written history of...
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