State v. Evans

111 Iowa 80 | Iowa | 1900

Given, J.

I. This appeal is not, as defendant’s counsel seem to regard it, from the order resubmitting the case only, but it is from the judgment as rendered, and it is of that part which set aside the indictment and discharged the jury that the state complains. Appeals in criminal cases, whether by the state or the accused, “can only be taken from the final judgment.” Code, section 5448. State v. Swearengen, 43 Iowa, 336; State v. Davis, 47 Iowa, 634. Is this a final judgment? Section 5272 of the Code provides that “the charge” be again submitted, and the defendant continued, in custody, or on bail, whom the grand jury have failed to indict on the first submission. Section 5324, in relation to setting aside indictments, provides: “If the motion be granted, the court must order the defendant, if in custody, to be discharged, or, if admitted to bail, that his bail be exonerated, or, if he has deposited money instead of bail, that the money deposited be refunded to him, unless the court direct that the case be re-submitted to the same or another grand jury.” Section 5331 of the Code, in relation to demurrers to indictments, contains the following: “If sustained because the indictment contains matter, which is a legal defense or bar to the indictment, the judgment shall be final and the defendant must.be discharged; if sustained on any other ground, the defendant must be discharged and his bail exonerated, if bail has been given, unless the court is of opinion, on good cause shown, that the objection can be remedied or avoided in another indictment, in which case the court may order the cause to be re-submitted to the same or another grand jury, and the defendant may be held in custody, if not at large on bail, in which case the undertaking given shall remain in force.” If there had been no order resubmitting the case, the judgment would have ordered the discharge of the accused, and exonerated his bail, and this would have been a final judgment; but, there being, such an order, the defendant is not discharged, nor his bail exonerated. By the finding of an indictment this case was brought into existence against the defendant. It is this case that the statute authorizes, under the conditions named, to be resubmitted, and it is this “cause” that was ordered resubmitted. A reindictment is a substitution of the second charge for the first, and a grand jury alone can do this. Therefore, we ■have these provisions for resubmitting “the cause.” If the statute of limitations was asserted against the second indictment, the first having been returned within the time required, the state would hardly concede that the judgment setting aside the first indictment, and ordering the case resubmitted, was a final judgment. Concede that the court erred in the judgment it rendered, the state was not materially prejudiced. It might go forward in the prosecution of this case to a final judgment. It surely has little to 'gain by this appeal; but, be that as it may, we are of the opinion that, a resubmission having been ordered, there has been no final judgment in this case from which either party can appeal. The motion to dismiss the appeal is sustained. — Dismissed.