State v. Ensley, 10 Iowa 149

State v. Ensley

10 Iowa 149 | Iowa | 1859

Lead Opinion

Wright, C. J.

In each of these cases, defendants were charged before a justice of the peace, on written information, with selling intoxicating liquors. It is objected in one case *150that the information was not sworn to by tbe informant. Tbe transcript of tbe justice certifies that it was sworn to, and tbe information is followed by a jurat full in all its facts, except tbe name of tbe magistrate. Under these circumstances, we tbink tbe objection, if available at any stage of tbe proceedings, comes too late, when urged for tbe first time, in tbis court. We think it may well be treated as a technical error or defect, to be disregarded 'under section 3097 of tbe Code.

. It is again objected that defendant was found guilty as for a first selling or a first offense, while the information charges a second selling and a former conviction. To tbis there is no objection. Tbe offense for which he was convicted, is included in that charged. Code, section 3039 ; The State v. Gordon, 3 Iowa 415 ; Same v. Benham, 1 Ib. 542. Tbe remaining objections relate to tbe vacation of the orders awarding a change of venue;

The 52d rule of practice, in tbe district where these causes were pending, provides that tbe applicant for a change of venue in a criminal ca,se, unless in custody, shall enter into recognizance within forty-eight hours from the time the same is allowed, conditioned for his appearance, at the next term of the court in the county to which the change has been awarded, and if he does not do so, the order will be vacated and the defendant ruled to trial. In these cases the defendants made their applications, which were adjudged sufficient, and the change of venue allowed. They failed, however, without any cause, as far as disclosed by the record, to enter into the required recognizances. The orders, on motion of the district prosecutor were set aside and defendants held to trial in Washington county. In this we think there was no error. The court had power, in our opinion, to make such a rule, (Code, sections 1589, 91, chapter 250, page 411, Acts of 1857,) and indeed it is inherent in evéry court of general jurisdiction. If defendant is in custody, then by the express language of the rule, he is not required to enter into the recognizance. Or if being previously out on bail, he *151during the forty-eight hours surrenders himself, of course , the order would not be set aside. This surrender answers the place of the contemplated bond.

It is objected that the rules of practice referred to, were not filed and recorded in the clerk’s office of Washington county. The record recites that they were published, that a copy was deposited in the court house, but that they were not filed and recorded in court. To publish a rule is to make it public, make it known. This publication implies its adoption. Ignorance of the rule is not averred nor pretended.

These rules of court, it is known, are in most if not all the judicial districts, after their adoption, printed in a form convenient for use, and circulated in the several counties. The law contemplates their adoption by the court and not by the person filling the office of judge. They should be adopted of record. Not perhaps that it is strictly necessary, that they should be spread upon the records. And yet this is the better and safer course. The rules as adopted, or a printed copy of them, if not spread upon the records, should within a reasonable time-be filed in each clerk’s office. But if adopted and published, made known, we are not prepared to'say that they may not be enforced before the actual filing. Eor aught that appears nothing more was done in this case in the court below.

Judgment affirmed.

Dissenting Opinion

StocktoN, J.,

dissenting. — I dissent from that portion of the opinion of this court which relates to the right of the District Court to set aside the order awarding the change of venue to the defendants.

When the change of venue was allowed upon sufficient ¡reason, there was no power in the District Court to set aside the order, on the ground that the defendants failed or refused to give bail for their appearance to answer the indictments at the next term of the District Court for the county to which the venue was ordered to be changed.

*152The consequences of the failure or refusal of the defendants to give bail, within forty-eight hours after the order for the change of venue is allowed, cannot be fixed by rule of court to be that the order for change of venue shall be set aside, and the defendants tried in the county where the indictments are found. The alternative of such failure, or refusal, has already been fixed by law. The defendants are to be committed to the custody of the sheriff to be transferred by him, in default of bail, to the county to which the venue has been changed.

The court can not affix as the penalty of failure, or refusal to give bail, that the order for the change of venue is revoked. The condition has already been fixed by the law; the party must go into the custody of the sheriff. If he fails to exercise his privilege of giving bail, he must stand committed. He is in contemplation of law, in custody at the time the order of the change for the venue is made. If not actually so he should be called in his bond and required to submit himself to the jurisdiction of the court, and either give a bond for his appearance in the other jurisdiction, or yield himself to the custody of the sheriff. If he fails to answer his bail bond should be forfeited. But the District Court has no power by rule to change the law, or affix any condition to the order for the change of venue, when the same has been allowed upon sufficient cause.