58 Iowa 102 | Iowa | 1882
Some question is" made as to whether the District Court of Dallas county had jurisdiction at any time of the cause. It is said that there is no record that an indictment was ever found, and no record showing that the indictment, with the other original papers or certified copies thereof, was ever received and filed by the clerk of the District Court of Dallas county. It does appear of record, however, that the defendant appeared in the Eolk District Court, and was arraigned upon an indictment; that he filed a motion to set it aside, and demurred to it, and filed his petition for a change of venue, and executed a bail bond; that he appeared at the proper time and was tried upon the original indictment in the Dallas District Court, and was convicted, and a new trial was granted upon his motion. After, this trial the indictment was lost or stolen.
There appears to be a certified copy of what purports to be
The main question, howevex-, on this branch of the case is, had the court power to substitute a copy of the lost or stolen indictment, and put the defendant upon trial?
The defendant’s contention is, that he coxxld be txded only on the “identical, oxlginal indictment foxxnd by the gx’and jury of Polk coxxnty.'” In Ganaway v. The State, 22 Ala., 772, the defendant was indicted, and the caxxse was continued at several sxxccessive terms of the coxxrt. At the tenn at which the cause was called for trial the indictxnexxt coxxld not be foxxnd, it having been lost or abstracted. The coxxrt perxnitted a copy to be substitxxted, and the dofeixdant was tried
In the case of Bradshaw v. Com., 16 Grat. (Va.), 507, it was also held that it was error to substitute a copy of an indictment which had been lost or destroyed. The court, in its reasoning, follows the case of Ganaway v. The State, supra. In State v. Harrison, 10 Yerger, 542, the defendant was indicted, and the indictment was lost or mislaid during the trial. The prosecution moved to make a copy of the indictment a part of the cause. It was held that this might be done if the court acted from recollection of the contents of the indictment alone, but that a substitution of a copy could not be made upon proof by affidavits, independent of the recollection of the judge, of the contents of the lost instrument.
In Mount v. The State, 14 O., 295 the indictment was lost or stolen after verdict of guilty. The court say: “ It was not indispensable to the sentence that the original indictment should be before the court. If lost or destroyed by accident or by the fraud or design of the plaintiff in error, or stolen by him or another, and the prosecution were not in fault, its place might have been supplied by a copy like any other record or pleading.”
In Buckner v. State, 56 Ind., 208, the record showed the following entry: “State of Indiana v. Thomas J. Buckner, —selling without license — indictment burned.” The record did not contain any indictment and the court said: “If the defendant was tried upon a certified copy of the indictment, that copy constituted a part of the record, and should have •been contained in the transcript. We must presume that the transcript is complete and' perfect.” It was held that if the
In Bradford v. The State, 54 Ala., 230, the defendant was put upon trial upon an indictment. After all the evidence was introduced, and the attorney for the commonwealth was about to commence his argument to the jury, it was discovered that the indictment had been lost during the trial. Counsel for the defendant consented that “the indictment might be substituted and the trial proceed under the substitute.” The trial then proceeded precisely as though the original indictment had not been lost, and the defendant was found guilty. It was held that this was no error; that the court had the inherent power to preserve its records by substitution, if necessary, and that as the defendant had demurred to the indictment and pleaded not guilty to it, he thereby admitted that it was an indictment. This case does not overrule Ganaway v. The State, supra, but distinguishes it upon the ground that in that case the defendant had not been arraigned, and had not pleaded to the indictment. In State v. Simpson, 67 Mo., 647, the defendant was tried upon a copy of an indictment which was substituted for the original which was lost. The court approved of the practice, but reversed the case upon the ground that there was no evidence that the indictment had ever been made of record. The power to substitute a copy of a lost indictment is recognized in Bishop’s Criminal Procedure, Yol. I, § 1215.
The foregoing are the authorities cited by counsel for the defendant and for the State upon this question. It will be seen that in Ganaway v. The State, and State v. Harrison, the power of substitution is denied, and in the other cases, while it may be said the question does not fairly arise, the power is affirmed. Both of the last named cases are based upon the same -reasoning, which is, that the court, having no power to present or make an indictment, cannot substitute a copy for one which is lost, and the question is treated the same as though it involved the amendment of an indict
There is an inherent power in the court to preserve and protect its jurisdiction when it has once attached, and to that end we can see .no good reason why it may not substitute any of its records which may be lost, by properly authenticated copies.
The case at bar is similar to Bradford v. The State, supra. There, the defendant had been arraigned and pleaded to the indictment before it was lost or stolen. In the case at bar he had not only been arraigned and pleaded, but he had been once tried If in that case it was competent to substitute a copy, it surely was proper in this.
¥e are prepared to hold that when a defendant has been arraigned upon an indictment, and it is afterward lost or abstracted, the court may, upon motion, substitute a copy and proceed upon the record thus made, the same as upon the original indictment. This rule is in consonance with modern practice, which disregards unimportant technicalities, not vital or material to the rights of the parties.
Be VERSED.'