State v. Hale

44 Iowa 96

Opinion

Adams, J.

We are of the opinion that the defendant should have been allowed to withdraw her plea of not guilty, and to file a motion to set aside the indictment. In State v. Groome, 10 Iowa, 308, it was held that the defendant did not, by accepting a jury, waive objection to the incompetency of a juror on account of not being an elector of the State, the fact of his incompetency not being known to the defendant at the time.

In State v. Abrahams, 6 Iowa, 117, it was held that where two offenses were charged in the indictment, and a plea of not guilty was filed, the defendant should have been allowed to withdraw the plea for the purpose of filing a motion to require the prosecutor to elect on which of the offenses charged in the indictment he would proceed to trial.

In Cochrane v. State, 6 Md., 400, Le Grand, Ch. J., said: “It must be confessed that there is no little indistinctness in the reported cases whether the right to withdraw the plea of not guilty and to demur, belongs unconditionally to the prisoner, or is a matter of favor to be granted by the court. We thinkj however, that the better opinion is, as is clearly the justice in the'matter, that the prisoner has the right.”

Reversed.