Rutter v. State

Supreme Court of Iowa

Rutter v. State

1 Iowa 99

CourtSupreme Court of Iowa

DecidedJune 15, 1855

StatusPublished

Cited by1 cases

This text of 1 Iowa 99 (Rutter v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rutter v. State, 1 Iowa 99 (iowa 1855).

Pincite

Opinion

Woodward, J.

This is an indictment against the plaintiff in error. A demurrer was filed to the indictment and overruled, and the party pleaded “ not guilty.” After which, in the record is the following entry: “In this case, by agreement of parties, the matters and things under said demurrer are to be taken to the Supreme Court, as though the case had been finally determined. The attorney for the state now moves that this cause be dismissed, and the writ of error quashed, for reason that there has not been a final judgment rendered therein.

Section 3090 of the Code says: “ No writ of error can be sued out in a criminal action, until final judgment has been rendered.” The prohibition is express and positive. The parties may waive the process, the notice, &c., by which they are usually brought into this court, and perhaps might waive time in some of its relations, but can they waive a judgment as in this case ? We think not. ■ The statute has bearings which are not merely of a personal nature, and designed for the party’s benefit only. If the defendant is acquitted, the question would not come up. If he is con-' victed, he may be placed in safer custody. By postponing the trial, the chance of escape, of evasion, of the death of witnesses, or their forgetfulness, are multiplied; and possibly [100]*100the same question might have to be tried again. At all events, the practice here sought encourages experimental questions.

If the parties may, by agreement, do what is sought, could they not also take out a writ of error ? It is probable that they saw that such a writ, taken at this stage of proceedings; must be quashed. And if so, their agreement, without such writ, must be. We do not think they can waive this provision of the statute. The cause is stricken from the calendar. Authorities bearing on such questions, are Long v. Long, Morris, 381; Chapman v. Morgan et al., 2 G. Greene, 374; Ginn et al. v. Rogers, 4 Gilm. 131; Kenney et ux. v. Greer, 13 Ill. 432 ; 6 Texas, 263.

Free access — add to your briefcase to read the full text and ask questions with AI

Woodward, J.

This is an indictment against the plaintiff in error. A demurrer was filed to the indictment and overruled, and the party pleaded “ not guilty.” After which, in the record is the following entry: “In this case, by agreement of parties, the matters and things under said demurrer are to be taken to the Supreme Court, as though the case had been finally determined. The attorney for the state now moves that this cause be dismissed, and the writ of error quashed, for reason that there has not been a final judgment rendered therein.

Section 3090 of the Code says: “ No writ of error can be sued out in a criminal action, until final judgment has been rendered.” The prohibition is express and positive. The parties may waive the process, the notice, &c., by which they are usually brought into this court, and perhaps might waive time in some of its relations, but can they waive a judgment as in this case ? We think not. ■ The statute has bearings which are not merely of a personal nature, and designed for the party’s benefit only. If the defendant is acquitted, the question would not come up. If he is con-' victed, he may be placed in safer custody. By postponing the trial, the chance of escape, of evasion, of the death of witnesses, or their forgetfulness, are multiplied; and possibly [100]*100the same question might have to be tried again. At all events, the practice here sought encourages experimental questions.

If the parties may, by agreement, do what is sought, could they not also take out a writ of error ? It is probable that they saw that such a writ, taken at this stage of proceedings; must be quashed. And if so, their agreement, without such writ, must be. We do not think they can waive this provision of the statute. The cause is stricken from the calendar. Authorities bearing on such questions, are Long v. Long, Morris, 381; Chapman v. Morgan et al., 2 G. Greene, 374; Ginn et al. v. Rogers, 4 Gilm. 131; Kenney et ux. v. Greer, 13 Ill. 432 ; 6 Texas, 263.

Cite This Page — Counsel Stack

Bluebook (online)

1 Iowa 99, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rutter-v-state-iowa-1855.

Opinion

Related

Cite This Page — Counsel Stack