Thrasher v. Haynes
| Decision Date | 13 February 1936 |
| Docket Number | 43110. |
| Citation | 264 N.W. 915,221 Iowa 1137 |
| Parties | THRASHER v. HAYNES, Warden. |
| Court | Iowa Supreme Court |
Appeal from District Court, Lee County; John E. Craig, Judge.
Habeas corpus action brought by plaintiff, a prisoner in Iowa State Penitentiary, against the defendant, as warden of said institution. There was a trial to the court resulting in a judgment and order denying the plaintiff's prayer for his release and remanding him to the custody of the defendant. The plaintiff appeals.
Affirmed.
E. C Willis, of Davenport, and Herminghausen & Herminghausen, of Ft. Madison, for appellant.
J. R Leary, Co. Atty., of Ft. Madison, for appellee.
On the 10th day of February, 1930, an information was filed by the county attorney of Buchanan county, Iowa, accusing Fred Thrasher of the crime of larceny in the nighttime, and also alleging previous convictions on the charges of breaking and entering, escape, and possession of counterfeit papers. This information was approved by the judge of the district court and filed with the clerk of the district court of Buchanan county on the 10th day of February, 1930. Thereafter, the defendant, Fred Thrasher, entered a plea of not guilty, and upon the trial of the case, the jury returned a verdict finding him guilty of the crime charged, and that he previously had been twice convicted for crimes and sentenced to terms of not less than three years each. On the 24th day of February, 1930, Thrasher was sentenced to be committed to the penitentiary at Ft. Madison, Iowa, for 25 years, as provided by law.
This action was commenced on the 19th day of September, 1934, and is based on the ground that the information which was filed against said Fred Thrasher in the district court of Buchanan county was filed therein at a time when the grand jury of said county was actually in session; that the said information was illegal and void; and that all subsequent proceedings in said case, including the judgment and order of commitment thereunder, are illegal and void, because the trial court was without jurisdiction. The answer of the defendant herein admitted that the plaintiff was confined in the state penitentiary at Ft. Madison in the custody of the defendant, as warden, and under and by virtue of the sentence of commitment from the district court of Buchanan county, but denied all other allegations of the petition.
On the trial of the case, plaintiff herein introduced in evidence the records of the district court of Buchanan county, Iowa, showing that the grand jury of that county was in session on the 10th day of February, 1930, and that on the 10th day of February, 1930, the information under which he, as defendant, was tried and convicted in Buchanan county, was filed by the county attorney of that county with the clerk of the district court thereof. Plaintiff herein contends that, under this showing, it must be held that the grand jury was in session at the time that the information was filed; that there was, therefore, no legal authority for the filing of the information involved in this case; and that the trial court did not have jurisdiction to try and sentence the plaintiff herein under such information.
The argument is based upon the contention that under the general rule of law there is no subdivision of a day into parts or fractions thereof; that the evidence having shown that the grand jury was in session on the 10th day of February, 1930, and that the information was filed on the 10th day of February, 1930, this constituted a showing that he information was filed at a time when the grand jury was in session; that, as there was no evidence to the contrary, the trial court in this case should have found, as a matter of law, that the information was invalid and void, and that the plaintiff was being illegally detained under a void judgment and commitment.
The statute authorizing the filing of informations by county attorneys, so far as applicable to this case, is as follows:
It will be noticed that the language of this statute provides that an information may be filed by the county attorney " at any time when the grand jury is not actually in session." The statute does not prohibit the filing of informations on any day when the grand jury is actually in session. The authorities cited by the appellant all have reference to acts or events occurring on a " day" or " date," and, while it is the general rule that when the word " day" or " date" is involved, such word will be construed as including the entire day or date, this rule is not of universal application. The general rule cited by appellant, and upon which he relies in this case, may be found in 62 C.J. 978, and is as follows ...
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