*1 854 overruling err in trial court did not opposition
This
describes
word
demurrer.
defendants’
means.”
quasi
action and
forcible
by direct
meaning
§
has this
word
II. The instruction.
an officer”:
“resisting
defines
Black also
jury that resistance
instructed
obstructing,
law,
offense of
“In criminal
“with or
occur
within
742.1 could
officer
(with
endeavoring
prevent
to
opposing
Defendants took
actual force”.
without
force) a
officer in
peace
or without actual
to the instruction
exception
timely
writ or in
lawful
execution
that the resist
requires
ground the statute
making an ar-
duty while
discharge of his
force.
involve actual
ance
peace.”
enforcing the
rest
otherwise
of-
explanation of the
The trial court’s
here.
has relevance
also
definition
interpretation
with our
fense accords
as
“resist”
used
The word
I. The offense
Division
statute
but does not
to obstructive conduct
so
actual force
the use of
occur without
actual violence
require
employment
to
opposition
long as
conduct
the person
if
or direct force. It is sufficient
necessary for
reasonably
officers makes it
opposition
in actual
charged engaged
carry
their
force to
out
officers to use
or con
through
use of actual
officer
duty.
reasonably
making it
neces
force
structive
overruling
err in
trial court did not
carry
use
out
sary
the officer to
force
the instruction.
exception to
defendants’
State,
Ala.App.
v.
32
his
Caldwell
duty.
State,
Sufficiency of
evidence.
III.
(1945);
v.
Appling
876
23 So.2d
light
its
most fa
Viewing the evidence in
(1910);
re
866
95 Ark.
128 S.W.
State,
charge
find the
Cal.Rptr. 322 vorable
Bacon,
49
Cal.App.2d
240
supported
7, 1
each defendant
Avnayim, Conn.Sup.
24
(1966);
v.
348, 185
evidence.
(1962);
A.2d
substantial
Conn.Cir.
Harris,
(1967);
236 A.2d
Conn.Cir.
overruling
did
err
The trial court
Kan.
(1875). The “resist” in § word
vague. as used
The word “duties” equally clear. applicable
insofar duty
Peace officers are 748.4,The Code. The offi- make arrests. § Iowa, Appellant, STATE unquestionably carrying cers out that Graham, 203 duty here. See 755.4(1), (Iowa 1973); BROWN, Magis Judicial Thomas R. Hon. Des of the District Court of trate Iowa, Appellee. County, reason, Further, de same urge the successfully
fendants cannot phrase his duties without such “discharge of Court of Iowa. Supreme writ, rule, order, is overbroad as process” duty officers’ applied to their conduct. The not threat a warrantless arrest did make constitutionally protected freedom any
en
of defendants.
Allowing Defendant
to Depose State’s Wit-
ness.”
hearing
On
Judicial Magis-
trate Thomas R. Brown defendant relied on
Code section
holding
781.10 and our
in State
Review was submitted certiorari Judge District J. R. Leary agreed who with the Magistrate’s reliance on section 781.10 and our Peterson case and affirmed the Magistrate’s order. The has appealed State from denial of its claim the act- illegally. ed point infra,
I. out, section 781.10 has analyzed interpreted been cases involving indictable regarding offenses right to take discovery depositions. We are here permit asked the first time to accused to take such a simple misdemeanor case.
Code section 781.10 “A a criminal either Hoth, County Atty., Burling- Steven S. information, after preliminary indict- ton, for appellant. ment, information, examine may wit- conditionally nesses or on notice or com- Loeschen, John Terry C. Miller and D. mission, in the same manner Burlington, appellee. like effect as in civil actions.” In. v. District Court Iowa County), 253 114 N.W.2d MOORE, Chief Justice. rules, adopted held our question presented sole ap- on this were available in civil cases. We did peal is whether a defendant awith statute, so on the basis the now section which has been in Code since depositions. We reverse the lower court’s purpose was for the of perpet- order authorizing such and re- uating when defendant’s evidence the wit- case for mand might nesses otherwise available. be Arthur was charged Louis Klein in Des This observed was suffi- Court by “Informa- testimony ciently advised be of- tion” with pos- misdemeanor of that requirements fered the State session of property having stolen a value of minutes of be attached less than violation Code section indictment or true infor- 712.1. mation. Code sections 772.3
October 1974 Klein filed three applica- applied v. District cited tions entitled “Application Order County) 764; where the information McClain, 256 Iowa filed; Gates, parties, if defendant (2) names of the not, Rankin, Iowa, known, such names and if then 617 and be complainant and However, by the expressed given them dissents constituting the the acts challenging sufficiency
these a statement of *3 offense, language, ordinary and concise an accused to in minutes to enable of of the commission place and the time and for trial. prepare offense, be. Code sec- as near the In State v. N.W.2d names and Listing of witnesses tion 762.3. each reason referred abandoned testimony is not of minutes of attachment Coun- in State v. District knowledge pre-filing No and mandated. safeguards established ty), supra. We required. is approval prosecutor at rule that trial the established beyond the be allowed min- safeguards reasoning and found The utes. In other words we abstracted held Peterson, supra, applica have no in- minutes often do not sufficient simple case. Peter tion in a preparation by an ac- formation trial potential the unfairness to recognized son page of 219 stated: cused. At prose the the that results from * “* *. We overrule State subpoena witnesses and cution’s (Delaware County) and now hold a Safeguards testimony. obtain their sworn 781.10, defendant, by authority of The prior to the Peterson such in existence Code, may discovery depositions of testimony, were often found as minutes of The denial of defend- State’s witnesses. prep inadequate for defense counsel’s discovery ant’s to take application simple misde aration. In context error.” however, prosecutor’s ad meanor No vantages greatly are reduced. sworn very Thus Iowa became one of the few to the or testimony is available either extensive use of states to allow no in most cases. Since min is in criminal cases. Vermont oth- testimony are attached to the infor utes of state use of er which allows unlimited mation, defendant does not need to covery 24 Drake Law Re- depositions. See to determine if he or she depose the witness (1974). view 185 beyond scope testify will of the ab II. in- already stated cited eases reasons, For these it is stracted minutes. volved or indictments unequal scope clear that of true informations to which the minutes of compelling simply found the State’s witnesses must be attached. in this case. We therefore find no Only permitted listed witnesses are State’s extending the use commanding reason testify case-in-chief. Our State’s discovery depositions of misde provide entirely statutes different rules for magistrate meanor acted ille cases. filing prosecuting and misdemean- discovery deposi gally authorizing or accusation. tions. Simple those pub misdemeanors are have We hold District Court should lic are punishable offenses which fine We order sustained the writ of certiorari. days jail. They not to exceed this case remanded Denato, Iowa, Wright are nonindictable. and citations. Prose AND REMANDED. REVERSED cution of such an offense is commenced magistrate before a district court clerk REES, RAWLINGS, JJ., and LeGRAND complaint, an information or subscribed concur. to, filed with the sworn UHLENHOPP, HARRIS, MASON, his deputy. or district court clerk or Code section 762.2. information must con REYNOLDSON only (1) county specially. tain the name of the and of concur HARRIS, magistrates provided specially). be as (concurring Justice 602.62, 631 and 648.” The Code. is whether question Code, contemplates taking Chapter Accordingly 781 is omitted. prosecutions of nonindictable provisions applica 781.10 have no on fa- misdemeanors. turns tion to trials of nonindictable misdemeanor miliar principles construction. cases. In judicial magistrates trying Full-time in-
(Iowa 1974)
pro-
section does
held this
dictable
employ
misdemeanors
district
taking
discovery depositions
vide for the
judges’ practice
procedure.
sec-
in felony and indictable misdemeanor cases.
tions 602.4 and
the Peterson
overruled State v.
I
concur
the result.
County),
District Court
*4
ground
issue depose of whether the under section
interpretation. in the opinion proceed
instant appears in this re- gard concurring from view in Peterson. Virginia J. BERDING and Herman J. allowing Our Berding, Appellants, covery in criminal did not reach non- prosecutions. indictable misdemeanor Rule LeRoy THADA, Appellee. Dennis Rules Civil Procedure “These shall govern practice rules BERDING, Camie a minor Herman J. state, procedure all except courts friend, Berding, her father and next otherwise, where they expressly provide Berding, Appellants, and Herman J. hereby statutes not provide affected differ- procedure in particular courts or cases.” A proce- THADA, statute does LeRoy different Appellee. Dennis dure magistrates. before Section ADAMS, Randy a minor Richard J. Code, enacted in lists the Adams, friend, his father and next govern procedure which are to before Adams, Appellants, and Richard J. magistrates. Code, Section first appeared Code, in The 1860. THADA, LeRoy Appellee. Dennis “Where, subsequent legislation comprehensively which specifically FRANKS, Emmanuel Executor treats a matter in a prior general included Franks, of Theresia Estate statute results in ambiguity or redun Deceased, Appellant, dancy, prior legislation is deemed re pealed by implication. (Authorities).” Du LeRoy THADA, Appellee. Dennis gan al, Transport Co. v. et Worth Accordingly the operation of Supreme Court of Iowa. following modified language later enactment: “The criminal procedure judicial magistrates as pro- chapters 751, 763, 765, vided in 754 to judicial 768. The civil procedure before