McCandless v. District Court of Polk County

McCandless, petitioner, Bawden James District Court County, Jordan, Judge, Russell Polk Honorable

respondent.

No. 48352. 674)

(Reported in 61 2d N. W. 1953. December Rehearing Denied March 1954. Guthrie, City, & of L.

Prince Webster Dale Porter and Lehmann, Hurlburt, Cless, Blanchard & all of Des Moines, petitioner. E.

Clyde Herring, County Attorney of Polk of County, Moines, for respondent. Des August, the 3rd 1952, petitioner, J.—On of James

Larson, County, Iowa, was McCandless, Bawden arrested Polk and charged operating a with motor vehicle while intoxicated. He grand jury was bound over to and the released on bond which by was furnished a relative with whom he resided near Webster City, provided appearance Iowa. Petitioner’s bond for his at the next of term the Court and for Polk County “to * # * begun and day be held at Des Moines 2d Sep- of D. tember, 1952,” A. there and charge against then answer the grand jury him. The returned an against petitioner indictment October, McCandless on of 1952, charging the 10th him with operating of a motor crime vehicle intoxicated, while second offense. Warrant issued for his arrest and said information by communicated radio the office of the of sheriff Hamilton County, though showing by is no was- there ever received reply officer, sheriff. there was that Nevertheless no from no County officeto obtain Polk sheriff’s shown further action depart accused, attempt the accused no custody and of was called April defendant On from usual abode. his answer, his bond declared forfeited. court, open failed to until knowledge of his indictment he had Petitioner contends Hearing bondsman. April 27, 1953, his was served a notice why judgment May, 1953, to show cause was set for the 11th bond. Petitioner and counsel on the should not be entered date, forfeiture was set appeared in on said the bond arraigned formally under the indict- aside, dismiss the indict- Thereupon petitioner filed a motion to ment. provisions of 795.2 and ment, stating grounds the sections 795.3, Iowa, appeared that accused had 1950. It Code within few7 lived in Moines and worked there blocks Des part Septem- from the latter the courthouse most of the time inquired hearing, 1952 until but had never of the court ber did or of status of matter. He visit court officials as City kept frequently and said at his home near Webster representing him in touch with his who was there His had written several letters to other matters. County Attorney regarding charge, of which Polk most pertained attorney’s view that there was insufficient evi- grand jury. presentment dence for consideration or September 2, 1952, last these letters was dated and stated: case, “With reference to the above w7ehave had no further your your disposi- w7ordfrom office with reference intended tion of the the defendant is to matter. event arraignment request at indicted, produce your we will him for days agreeable you. two if bn notice that is Inasmuch as request plea guilty, event, we that in will be not also such day be set for trial to a certain in order that we case be on hand for trial.” County Attorney replied 4, 1952, September Polk on charge against the

as follows: “The OMVI above named defend- yet not heard the Polk ant [James McCandless] County Jury. keep you that I Grand Please assured will on Jury the Grand takes this advised of whatever action case.” that, nothing through Petitioner maintains he had heard otherwise, he had or a to assume that the though dropped, inquired had been he had not at matter requested that County courthouse his bond be Polk nor exon- erated. County in Polk

The terms of District Court commenced 2, September 1952, 3,1952, January 5, 1953, November March 1953, 2, duly May each term concluded without calling 23, April petit the accused for trial until 1953. jury 1953, term, discharged March was about April 10, dispute appears passage 1953. Thus there as to the petitioner’s of three terms of court the time of between indict- April 23, ment when his case was first called for trial. petitioner’s

In overruling motion to dismiss the iudictment him, against respondent judge very stated he had seri- ous begin doubts if the to run until statutes involved after arraignment. “ample good He also held that there was shown excuse bringing petitioner here” for not earlier trial. Thereupon petitioner proceeding instituted certiorari to ruling. review the court’s

I. period The statutory applicable whether the accused is arraigned arrested and not. We discussed this Court, matter Hottle District 233 Iowa 11 N.W.2d and held that while the jurisdiction court did have over person of the accused until he was served under the indict ment, the court could on own its motion dismiss the indictment proper showing under these sections. We discussed there the contention that, of the state because accused had never been arrested warrant indictment, issued under the could move to dismiss the indictment the reason that the court jurisdiction does not obtain arrest, until under the decision in Judkins, State v. 200 Iowa 206 N.W. 119. distinguished We further between that situation and in cases volving “speedy trial”, and concluded while the rule in Judkins correct, case was it did not to a apply motion to dismiss an indictment provide for failure to trial. conclude, We therefore, the motion dismiss the indictment proper under

604 not there had regardless of whether or statutes

the considered under indictment. arrest the been an again appeals, are called of like we II. As in a number application of constitutional interpretation and the an trial, by provisions the of as defined guaranty of a Iowa, 1950. Section 795.3, Code of and section 795.2 section public offense, indicted for “If defendant provides: 795.2 be application, his not postponed upon not trial has whose court in which regular the at next term brought to trial found, the court after the same is must the indictment is triable contrary good be dismissed, cause to order it to unless shown.” “If the be not indicted provides: defendant

Section 795.3 therefor is provided, and sufficient reason or tried as above may prosecution continued from term shown, order the custody on from his own term, discharge the defendant undertaking undertaking, appearance bail for or on continued, charge to which same to answer the at time beyond continuance under this section shall be extended but no following court.” three terms statutory quoted is a defi- The nature of the above sections “speedy particular trial” as conceived nition of the term legislature enacting it, purpose in mind of more effec- tively guaranty. enforcing the constitutional Pines v. Court, 233 Iowa 10 N.W.2d 574. together and are sections should be read inter

These preted “good if cause” is shown the court mean beyond (Davison case, continue the terms of court but three 667; Garfield, Iowa N.W. 260 N.W. Paul 257 751) Court, 1027, N.W.2d unless v. District 231 Iowa accused statutory privilege and constitutional waives some manner Court, supra. a speedy trial. Pines v. District jurisdictions most now is clear. order rule trial”, privilege “speedy he must enjoy for an accused If early trial. he fails to make a demand to the court for only privilege provided the consti do so he waives well, requirement tution but of the statutes “good unnecessary cause” for the state show therefore for afforded the accused privilege delay. Thus the we conclude is made no demand waived when early trial an is considered solely charge the no dismissal court, and can to the there not continuance was cause” for the “good ground that the made been only after the demand has by It is the state. shown and statutory provisions become effective that to court the the “good for a con- to show cause” place the state burden on the holding in Davison now alter our we tinuance. To extent supra. Garfield, bitterly injured that he was complains III. Petitioner County Attorney Polk upon promise of the when he relied the kept of whatever action the lawyer “advised that his would be may may or not be true. Jury takes case.” This Grand on this rely upon promise to petitioner his counsel chose and They compelled not county attorney’s letter. were in the nevertheless, transaction, This so. authorized law to do misplaced a failure petitioner’s than confidence or more little carry courtesy per county attorney through on he binding on sonally cannot be held the court assumed. It promise from his in the bond nor relieve the defendant state guaranteeing appearance. in court his To hold otherwise filed reason, does not appeal not the law confer would county attorney right to without dismiss indictment approval. punish county court’s In an effort to neglect provide it is unthinkable such indirect author ity public safety and expense in him at the welfare. Further more, authority, no nor have able we have cited we been any, county under holding to locate such circumstances a obligations accused from the of his relieve one trial an bond. The court held this insufficient excuse for defend required by bond, in court appear ant’s'failure and agree. deciding In so we we do not offer for the excuse County keeping promise failure of the Polk officer for not petitioner’s failing greater diligence counsel or for to use custody taking the into after the indictment. How ever, Court, supra, the ease of Pines v. District we held that defendant responsibility appear was not relieved from his though court to answer an indictment even he was available brought before arrested

for arrest and action. pursuant to a bond forfeiture nor purpose for that rights given the accused said that the been well weapons, shields, and our are statutes the constitution meaning legislature, give we must being intended so true, must one do in order If this is what to that intent. think not. carry it for him? We Must the state use the shield? Davis, 168 People of of New York v. State the case **“* 5 N. Y. S.2d the court said: Misc. attorney to part of the district obligation there no day particular notice of on which give the defendant People against defendant”, case of the proposes to move the statutory duty requires in Iowa that we find of notify a in default bond that he defendant his him at certain time. Such are from against will act notices court, county attorney, and so here the rely solely negotiations with the court in relation to must on any charge him to of against privilege avoid a waiver of a “speedy trial.” argues

Petitioner that the statutes herein set involved up legislative policy imposing upon of the officers of the state duty bring of action to the accused to the affirmative delay force, trial and that his inferred consent to is of no his demand trial cannot be held of the that failure to a waiver right. purpose is these statutes a dual constitutional true have delays by and were also intended to eliminate criminal cases courts, officers, especially imposing upon the affirmative them, duty speed but accused cannot of absolve himself responsibility delay appeals court, unless to the yet especially in cases where matter is before the court. appear is on bail and does not in court Where the defendant complain delay. demanding trial, he has little reason to of the 991, 176, 45 N.E. A. People, v. Ill. 35 L. R. Meadowcroft Rep. oppression 54 Am. 447. He is not under the of the St. designed goi'ernment provisions prevent. were which the general rule, established, well if IV. It is the now are the cause of or a contribut- acts or omissions accused delay ing passes factor the trial the second in the which over subsequent term, he should or not be entitled to a dismissal. so, to act when one acts, Such failure is bound to do agreed or to a give postponement, rise to an waiver of those statutory provisions constitutional and herein considered. Pines Court, supra. v. District of purpose section 795.2 and section 795.3 and the

provisions in 10 of Article I of the section Constitution Iowa Amendment as well Sixth to the Constitution as United States, repeatedly said, we have relieve one accused were.-to incarceration, hardship anxiety or the sus indefinite pended liberty prosecution bail, at to require if peace proceed courts and officers to the trial of criminal charges promptness with such proper reasonable as administra justice fully object tion demands. We discussed of estab lishing “speedy term definiteness trial” enacting such those herein statutes involved the case of Pines v. supra, Court, and shall not opinion burden this with a restatement of them now. jurisdictions agree other

Most with our Iowa rule. Howell, Hembree 90 Okla. Cr. P.2d the court bail, held that presumption where defendant is is that delay in trial consent, caused and the record affirmatively must show that he demanded trial or resisted con- bail, but tinuance, if he not on the law makes demand for him, prosecution has the burden of showing lawful cause delay, citing ex Bayless, State rel. Davis v. 38 Okla. Cr. 259 P. 606. Hottle v. Court, See District 904, 233 Iowa N.W.2d 30. court,

The in passing Minnesota on similar, matters said in McTague, 153, 155, State v. 173 Minn. 787, N.W. 788: * ** speedy “The trial is valuable. privilege is a It to the accused. If not it, he does claim complain. he should not may It be waived. The statute is a enforcing means of the consti- provision. spirit tutional The of the law is that the accused go must on demanding record the attitude of trial or resist- ing delay. If not do this held, law, he does he must be privilege. have waived the Until he has so acted the state is not called to establish the statutory existence the ‘good (Italics ours.) cause.’”

6'08 v. favor in Pines from this decision quoted

We Rowley, 198 Iowa held in State also Court, supra. We v. of our provisions that the 38, 199 N.W. N.W. 615, 198 an for benefit of accused are considered herein statute “It said therein: protection. We its claims person who by him.” waived n Foster, 246 N.W. 261 Mich. People v. making proper method demand that the court held 61, the in open in the cause or made by motion trial is filed they on bail are out waive the defendants court, and when demanding it. speedy trial right to a constitutional character, demands, whatever their made “The held: further officers, prosecuting on judge at chambers on circuit * * * rights defendants are for The not sufficient. were of the court. The demand must protection determination (Italics ours.) duty Here also the court.” to the be made court, and it is not sufficient appeal was to rely upon or such a demand to show duty required appear in lieu of his communication our is that one requirement under statute so bond. appear in court or file a counsel, must formal charged, or his early trial, request such a for an or request demand must any officer will not suffice. We con other here demand act failure to so amounted to a waiver petitioner’s strue desire, in, willingness interest that indicated part on his charge against early disposition him, to secure prior counsel to the inquiry of his submission anxious notwithstanding. jury grand to the matter already case of established Pines District haveWe more in it will take but little the nature of Court, supra, that any right constitute waiver of surrounding circumstances sections, for these there court said at under to a dismissal Iowa, page 583 of 10 N.W.2d: “It is con- our of 233 page 1301 petitioner, having postponement, resisted clusion trial, bring effort to nor made his ease demanded a nor any right provisions to a trial, dismissal under the waived 795.2). herein, believe, (now facts we 14024” of section finding by agreed the trial court that the accused justify accused waived to a that the postponement, to the The court’s refusal to dismiss under under statutes. dismissal the statutes here involved was within its requirement of correct. discretion was petitioner’s or valid can see no sufficient reason

We September term failure, after close 3, 1952, appear to in court to about November answer or be obligation. In this he was at relieved his bond failure fault. required duty appear by his bond Petitioner’s was not attorney’s communication. We unable, relieved are therefore, accept petitioner’s excuse for presenting not him- renewing court, inquiry or at least self to after the expired. September strange term of court had ITis after silence county attorney’s early receiving September letter in not convincing that he desired or had interest in a speedy dispo- charge against pending him. The most plausible sition of of his was agreeable indication desire that was any action postponement against him. the indefinite complained pleaded Petitioner further that he guilty charge Harding County, relying to a like on an assumed charge, prejudiced of this and would be dismissal further being County forced to face the Polk now indictment. The court change charge ordered no in the bar, however the case at so required charge accused will face of operat ing intoxicated, a motor while vehicle third offense. We feel fair and a sufficient this was was concession to defendant for county attorney’s promise. his reliance parte Kansas court Ex Garner, Van 134 Kan. 821, 822, 5 P.2d said: “But it does not follow that the petitioners go are to free without answering justice scot alleged provision their crimes because the of the crime code trial intended secure them complied with. petitioners since their these represented Ever arrest were * * * They quite counsel. were content to let the go by term calling without court’s attention their statutory right of (Italics ours.) trial at that term.” federal in accord, decisions are for in Pietch v. United

States, Cir., Okla., F.2d 129 A. L. R. 563, 567, 1414, 648, 1100, Ct. 84 L. Ed. S. 60 S. denied, 310 U.

certiorari charged with a crime cannot assert person “A said: court by the right speedy guaranteed trial his that with success has States to the Constitution United Sixth 'Amendment asked a trial. In the of an absence invaded unless to the request or demand for trial made court affirmative acquiesced appellant delay in the and presumed that must be citing (Italics ours.) cases. complain”, cannot therefore jurisdictions general rule most there this That states, a list cases various see Pines no doubt. For can supra, at 10 N.W.2d 574. Court, Iowa McTague, supra, 173 Minn. case State v. In the constitutional and 787, 788, the court said: “The 216 N.W. speedy protection trial are for the provisions for a statutory defendant, only that does not mean the state is but that really action. There is may initiate reason for the one that dilatory prosecutor simply because a to free an accused courts * * * switch’ while the ‘gone sleep at the defendant and in silence.” counsel rest way must act in some to assert his The accused trial, and if to call court’s immediate he fails attention demand, justify finding by failure will this the* speedy privilege of a trial. This that he waives the is the purpose and meaning of our statutes of the constitutional that Logic not demand we reward one provision. charged does neglect officer, mere of an nor with a crime for the that we society punish and for that same of an officer, the state failure way in some absolves himself from the accused fault unless court’s attention to the matter. calling the We are at least spirit say that the of the laws herein referred to is content go on in the demanding must record attitude of that the accused resisting delay, and such record and attitude a trial or must be done, If is not court. he is held to have expressed privilege of a trial as defined in the sections waived discussed, and the state is therefore called herein prove for a continuance. good cause

Having trial found no abuse of the court’s discretion in holding showing was a sufficient to constitute an there agreed postponement, “good delay, waiver, cause” for the the writ of certiorari is therefore annulled.-—Writ annulled. JJ.,

Garfield, Wennerstrum, Mulroney, Smith, concur. J.,

Thompson, dissents. J., join JJ., C. and Bliss in the dissent. Hays, Oliver, (dissenting) proposition by J. sole which Thompson, —The county attorney County, Polk attorney as for the re- spondent, attempts support holding the trial court’s is thus stated, heading “Proposition under the Belied on for An- nulling Iowa, the Writ: Section Code of 795.2, 1950, does not arraignment run until after there is an and plea of Defendant.” trial court, overruling The defendant’s motion to dismiss, case, “In appears said: it to the court that would be unconscionable to sustain the Motion. Therefore, the motion is overruled. It that ample good seems there is here, excuse and very I have serious doubts if- this begins statute to run until after arraignment.” there been an first, apparently major, ground upon which acted, that it would be grant “unconscionable” to

motion, nothing. of course means It'is not argued; nor is there any claim now made that the state showed “ample good excuse”, any excuse, long go for its failure to forward prose- with the cution. proposition by The sole set out the county attorney is quoted majority above. The opinion, following Hottle v. District Court, 233 11 Iowa N.W.2d properly holds the statutory period begins to run from the time of finding the indictment; arraignment necessary is not to start it. But the majority finds ground, upon another by relied the trial court, not listed proposition as a by respondent, affirmance for upholding ruling made below. I. We have held Pines v. Court, 233 Iowa N.W.2d it is incumbent the defendant to demand a trial before he can claim rights accorded him sections present 795.2 795.3 of the Code, and of section 10 of Article If does not demand of Iowa. of the State

I of the Constitution question them. The before to have waived is deemed a trial he promise It is this: Is a a narrow one. then becomes us here defendant, through counsel, to advise returned, something upon which indictment has been whether an It a defendant cannot demand may rely is evident the accused ? charged with the commission has been until he knows he a trial of a crime. goes beyond anything we have apparent this case

It Court, supra, and other date, in v. District approved to Pines majority necessary, the now enters Conceding demand is cases. must determining where and how the demand into field of Clyde Mr. E. correspondence between out the be made. sets County, petitioner’s Polk attor- Herring, county Guthrie, September Mr. under date of ney. letter from referring previous correspondence, says if the after indicted, produce arraign- him for should be “we will defendant request days agreeable if your on two notice ment at request you. plea guilty, Inasmuch will be not we also event, day that in for trial to a certain in such the case set September trial.” order that be on hand for On Mr. we Herring replied, saying grand had not the case before the come keep you I jury; and, “Please be assured that will advised of Jury on this whatever action the Grand takes case.” majority point, it While the does not stress the is evident an a demand for trial in ease indictment were returned was by petitioner’s majority says made counsel. The such demand open in court. highly must be made formal motion With this interpretation right of a defendant’s to a technical trial I agree, under our and statutes am unable to al- constitution though controlling question I it do not consider the case. majority petitioner implicit right

It is holds the had no county rely on the assurance of the that he would notify if an appearance counsel indictment returned. The were required by 763.4, of bond section Code when a defendant is held to answer “We, ^[*] * ^[*] undertake that the said hereby the district court, contains * * * [defendant] provision: appear county ...................., court of shall at district thereof, charge, the next term and answer said and submit at ** judgment of said to the orders court it apparent thought majority From this is the that the herein, appear defendant, petitioner was bound at the next happened. what term and discover for himself had grand jury hearing a mag- He was held to the after before istrate, August 13, 1952. The next term of the district County September grand jury but of Polk commenced until If majority did not return indictment October 10. (cid:127) correct, petitioner’s duty it was the to be at the courthouse day September Des Moines each from until October grand time as jury might such later the convenience of the ready determine, charge and submit “answer to the orders judgment the court.” He had no control over the time upon by grand when would jury, his case be acted and of knowing might course no means of when it be. It is understand- why counsel to avoid motion, able tried this waste of time and courtesy commonly and it a for was rendered attor- ney promise co-operate. majority says Yet the he had no right upon promise rely the written of the prosecutor, but must hold to the letter of his bond. If there had charge been no pending him, grand against jury, does, and the as it often had a returned an indictment or true information had filed, been given had which he no notice for the elapsed time which here, majority say I even doubt would he was bound to make preserve trial in demand for order to his constitutional and statutory rights. actually But situation as it exists is no county attorney right different unless the had or authority promise If to make the he did. he had such or authority, rely upon follows was entitled to it; so long rely surely so he did could not be said to have waived rights by failure to make demand trial. point

Turning the same is the added holding majority demand trial must formally made A open if trial, court. demand for an indictment returned, were was contained from letter Mr. Guthrie to Mr. Herring September under 2. It in reply date to this letter Mr. Herring wrote, September 4, I “Please be will assured that Jury takes the Grand action you of whatever

keep advised ease.” Herring why Mr. upon the reasons speculate need not We forgotten likely promise Very keep word. failed not recall it he did Apparently of other affairs. press in the April, six months following on the his office started even when event, In bond. appearance later, petitioner’s forfeit by lawyers both in type often made arrangement was of a they if fact, it intolerable would be criminal and civil cases. agreements. When good enter into such could not in faith binding and all deal- arrangements are not majority hold such open court, procedure length arm’s formal ings must be at practice eyes to realities of they shutting their are upon litigants. heavy burden imposing a additional law and agree for trial and practice for counsel to as to times is usual expense all time and upon multitude of details which save why suggested this should not be good No reason is concerned. agreed anything wrong plan with the done, why there was proper If Herring and Mr. here. it was to Mr. Guthrie —and lawyers say will experienced practicing who there are few rely counsel had petitioner and his was not—then notice, and upon it. It had no was bound to follows proceed- him until notice, against take no of the indictment six and ing to forfeit his bond was commenced over months three terms of court later. authority prosecuting attorneys handling

II. The upon by many passed criminal the courts times. cases county attorneys prescribed by are section 336.2 duties authority general of the 1950 Code. The rule as S., laid down in 27 C. J. prosecutor in criminal cases is Prosecuting Attorneys, pages section 404: prosecuting charged “Generally speaking, the is particular duty determining when to commence a with the of crim- it, to discontinue and has control when prosecution a case is under proceedings in the trial court. While inal attorney any agreement may prosecuting make control binding far as disposition thereof so reference to * * legal proper it

615 early "We have ourselves said case: “While the case Court, doubt, is the District it-is without under the control Attorney. of Any agreement the District make with disposition reference to cause, proper, so far as it is law, binding.” within the regarded limits of the be should Fleming, 443, State v. Iowa 13 444. Supreme county

The Montana Court has said: “The attor ney in state, only a crim directs under what conditions inal commenced, begins action shall be it but from the time until it supervision ends his complete, only and control is limited by such imposes.” Halladay restrictions as the law v. State Bank of Fairfield, 111, 118, 66 861, Mont. 212 P. 863. Laughlin

In Clawson, 328, 330, Pennsylvania v. 27 Pa. Supreme Court language: used this “If such officers [of mistake, make government itself, error of is an state] government cannot allow the citizen to suffer for his trust in its proper functionaries.” State, 191,

From Coster v. App. 475, 16 Ala. 76 So. is this: attorney “While the relation of and client does exist between the state, solicitor and the his solemn admissions in the progress of the trial binding of a ease are nevertheless state.”

Many exemplify authorities prose the extent to which the cuting attorney may bind the Ragone, state. Commonwealth v. 317 113, 118, Pa. 176 A. prosecuting attorney had agreed a guilty by verdict of not insanity might reason of be directed. The trial court direct, refused to so but submitted the case to a jury which guilty. found Pennsyl defendant Supreme vania saying: Court reversed “That the district attor ney acted within scope authority of his official in commit ting the Commonwealth proposition to the the defendant was insane is challenged. nowhere Such challenge could not sustained, proof imputation absence of of bad faith or improper part conduct on the of the Commonwealth’s representative.” county said the charged both.in criminal

and civil cases with judgment discretion, exercise presumed and is judgment carrying use sound grave out his

616 Court, N. D. 70 responsibilities. ex rel. v. District State Ilvedson 17, 291 620. N.W. Iowa, Attorney page 5, Opinions

At General in the is laid down rule that section 336.2 vests means attorney a to the manner and broad discretion as Southard which the state are to be enforced. laws involving People, was a case Colo. P. He agree to a continuance. a district Supreme Court agreement. had not the The Colorado carried out right that said: “The had the to assume bail in the instant case attorney carry agreement to move for the district would out his continuance, good that or consent a had cause to believe to ap- agreement, the case would be continued. He relied the parently setting- up in It the good faith.” held the answer was agreement attorney good a pleaded of district defense. the general authority duty attorney of an is discussed

The Jones, in 198 Okla. State ex Land Office rel. Commissioners of pointing R. 1. out 176 P.2d 174 A. L. After attorneys court, Supreme that the Oklahoma are officers the “ * * * * * Court said: if the court or an officer of the court parties tried, have misled absence as to the cases will be the time ” ease, parties of such but will be This was a civil excused.’ authority general under the right rules above-cited as to the public equally of the prosecutor conducting criminal it is cases appropriate. majority the pays question

The to little attention prosecutor may by prelimi- extent to which the bind the state nary agreements prefers pass off such as was here. to made promise notify county attorney County of the of Polk to petitioner’s counsel if an should returned indictment be transaction, nevertheless, the statement “this little more is county petitioner’s than misplaced a confidence or failure attorney to carry through courtesy personally assumed.” I agree it I cannot so misplaced confidence, was a case of but readily courtesy Mr. thought concur in the a mere which it was any Herring will, could at his without continue abandon upon in his petitioner’s appealed effect He to rights. returned, capacity official if should advise indictment agreed keep it were. case trial if He and asked set and, for petitioner’s informed, a reason not disclosed in counsel promise. to his record, paid authority more attention No majority which holds he could not bind the state cited simple which in no agreement, manner affected the merits (cid:127)or of the case. There is substantial issues none. majority, again with no citation authority, lays

down the that “the law not confer rule does right indictment dismiss without the court’s approval.” absence right While of' dismiss an indictment is cry right far from absence of agreement make an n advise a defendant if an indictment I think returned, majority ground making quoted. is on debatable the statement general contrary. weight rule is to the “The authority is to that in of a subject, the effect the absence statute on entering prosequi a nolle jury before the im paneled and sworn lies sole discretion of prosecuting Jur., Law, 14 Am. Criminal 296, page officer.” section 967. Buck, Commonwealth v. 285 Mass. 188 N.E. 614, the prosecuting had complaint entered dismissal of a pending urged court. district It was he had no to do so, Supreme but the Massachusetts Court held matter the was in charge properly the case prossed, and was nolle in his approved discretion. This case was cited and in by us State v. Foreign Wars, 1146, 916, Veterans of 223 Iowa 1149, 274 N.W. 383, although point 112 A.L.R. exact the under considera present. tion here- was not there question squarely Supreme was before the Kansas Finch,

Court in 128 State v. Kan. 280 P. 66 L. 915, A. R. general 1369. an informer had the attorney There advised liquor still, Kansas of the whereabouts of a as a result of which a arrested, raid and pleaded was made one Brown accused and guilty. thereupon county attorney Brown advised the of Shaw- Finch, informer, County partnership nee in that- the was him operation county proceeded still. The attorney the the prosecute general, to promised Finch. The had who Finch return his information he would be immune to prosecution, appeared in the and moved case to dismiss. The supreme Finch was convicted. and the motion

court denied had prosecutor, superior the attorney general, as court held the case. The conviction was dismiss the unqualified right to the same effect is dismiss. To the instructions to reversed with 183, 185, L. R. A. 1918C 204. P. Foley Ham, Kan. charge may not minority which holds join If we are court, we should do of the the consent be dismissed without raised, and not point opinion when the in a considered necessary uphold out it is not pointed I have casual dictum. to sustain dismiss an indictment right prosecutor to of the did here. validity of what holding required that majority it is not by the Cases cited notice of indictment give defendant prosecutor point; agree he did of course not for trial are date set authority doing, in so here, within his give he was such notice equally was within his was, petitioner and if he then question If is asked how this relying promise. on the trial, to make demand for duty petitioner of the affects the written Depending assurance answer obvious. if an indictment county attorney would be advised were been, knowledge it had and he would returned, he had no majority, apprehend, I make expected, not be even knowledge anything try. there was demand for trial without you' “I if an to him: will advise Herring in effect said Mr. advise; ‘had He did indictment is returned.” prosecutor was no indictment. The every right to assume there requires you Guthrie, “Your bond Mr. could have said to obey judgments court; appear at next term you But, so, promise.” I make expect you I to do shall practice long courtesy following a established in common of themselves and their among lawyers for the convenience to advise. was a matter of the clients, Herring agreed Mr. parties know enable all him and would smallest effort to arrange and to their affairs trial to be had if and when the accordingly. citing cases which length in majority goes to some holding that ordi- Court, supra, in

agree with Pines v. charged necessary a defendant before narily a demand is may complain speedy crime of failure to have a trial. Of course any way here, none of in touch our situation these where the agreement prosecuting of petitioner, because the attor- ney, knowledge had no he was under indictment. This applies People Foster, 261 Mich. as well to N.W. where authority held, any citation of or was without discussion reasoning, upon demand for trial that a made prosecuting the court in upon chambers not sufficient. I ease, to follow this in point. much dislike even if it should were The.county attorney in officer of the court charge of necessary it should not prosecutions, and be for an accused to in rights. How, file a formal demand order to assert his in case, employ proceed? is a defendant unable to such counsel point in the case does not reach But event we have here: attorney within his authority making Was the agreement and was did, rely upon entitled they' affirmative, If answered be, it ? these are should picture promised defendant who has by we have the been charge very public prosecution official his that he will returned, if an indictment is be advised who more than six promise being kept, penalized months later finds having majority “waived” to a trial. The “strange silence.” This speaks explained of his statement can be only by thought he should have pros- relied nothing ecutor’s written assurance. There is in the record other- why anything “strange” there was waiting wise show promised word. I shall should not and not close this dissent giving without majority: “Logic attention the statement does not charged demand that reward one with a we for the crime mere neglect officer, punish of an nor that society we state officer, for that same failure of an unless the accused in some way by from calling absolves himself fault at least the court’s say attention to matter.” This mistake, no no inad- vertence, incompetence, keep agreement no failure to prosecuting should taken advantage an ac- cused, go nor should he ever failures; free because such but he himself call them to must the attention of court. prosecutor equally failure of the

reasoning apply would to the questions, or to object improper defense offer evidence case, or to witnesses might aid the state’s list available which information, or upon the indictment valuable to the state It object apply of defense counsel. would improper conduct drawing information, an or or indictment to a fatal mistake negligences or indifferences of of a hundred other one reasoning duties. The performing their prosecuting officials quite evidently presumed is that the accused'is majority of the or guilty, recognize shall no mistake failure and we permit agreements which county attorney to honor his defend- rights contrary free, legal to the go ant to his constitutional notwithstanding. petitioner I think the was entitled to those rights. showing petitioner suggested prejudiced there is no is delay. Court, supra, v. District We held Pines protection of the constitution and is entitled to the accused jail he is held in is implementing statutes whether quoted approval from bond, and we there State v.

free Wyo. 227, A., N.S., 896, 98 P. L. R. 17 Ann. Keefe, 17 many ways in which Cas. to the same effect. There are may prejudiced by failure to large upon one at bail be have harassment; speedy trial. He is under mental strain and he is charge pending; public suspicion while the is- his wit under procurement or other evidence be-lost or be made nesses difficult; may prevented arrang from (cid:127)impossible or more An ing his as he otherwise would. even better answer affairs prejudice presumed contention lies the rule unless this' affirmatively contrary. to the the record shows re Estate of . Hoyt, many 163 N.W 180 Iowa other lay well-recognized' principle. Perhaps cases down the con however, petitioner asking is that answer, clusive for a right given him the constitution and the statutes of Iowa. legislature The framers of the constitution and the which enacted sought remedy prevent recognized evil in the statutes of the criminal law. The has been the administration granted him; denied the the mischief which the constitu clearly appears. tion and the statutes were aimed 'to eliminate from the denial of Prejudice arises on the face of the record litigant and statutes. The who protection of the constitution required to show of limitations is the statute relies delay, prejudiced by undue and the same has been that he gone far we applies We have as should reasoning here. situations; we application of the law these restricting the holding may not step further the accused should not take the him if county to advise rely upon agreement is an indictment returned. my that a de-

By way summary, it is belief the rule being permitted to demand for trial before fendant must make legal rights prompt trial does constitutional and claim his charged. Fur- apply until he knows he is not—in fact cannot-— bond which ther, appearance fact has furnished he at next term of the district specifies appear shall he through duly prosecut- state, its elected not material when authority, agreed attorney acting scope within the of his ing It was which waived him if he is indicted. the state to advise clearly power of the within the rights its here. It right to petitioner had a agreement. to make because it, had not been indicted rely upon and to believe he only escape from prosecutor. was not so informed he county attorney had no by holding this conclusion either contrary authority all did, agree which would be right to as he have known better reason; or that should Herring which Mr. rely upon giving of his word mere than Herring I Mr. not, doubt to, and did honor. was not bound majority implication opin- with this agree would himself power ion, county attorney had the I. If the nor do rely upon it. right to petitioner had the promise to make for trial until duty make a demand it, had no Belying on he was returned. knew an indictment I the writ. would sustain JJ., join in this dissent. J., and Bliss Oliver,

Hays, C.

Case Details

Case Name: McCandless v. District Court of Polk County

Court Name: Supreme Court of Iowa

Date Published: Dec 15, 1953

Citation: 61 N.W.2d 674

Docket Number: 48352

Court Abbreviation: Iowa