State v. Henry

13 N.W. 343, 59 Iowa 391

Opinion

Day, J.

In State v. McCormack, 56 Iowa, 585, this court overruling State v. Nichols, 38 Iowa, 110, held that the forging and the uttering of forged papers could not be united in the same indictment. The decision in State v. McCormack, was announced in April, 1881, which was after the trial of this cause in the court below. In this case the defendant’s attorney, following probably the rule announced in State v. Nichols, interposed neither demurrer, motion to require the State to elect on which count it would proceed, motion in arrest of judgment, objection to evidence, objection to sentence, nor motion for a new trial. The defendant waived the objection, which he might have urged, that the indictment charged two offenses, and went to trial upon an indictment charging in different counts offenses which should have been presented in two indictments. It is now urged that no legal conviction could be had upon the indictment because of its duplicity. We are of the opinion that this question cannot be for the first time raised in this court. See State v. Groome, 10 Iowa, 308; see, also, Knoll v. The State, 12 N. W. Rep., 369.

I. -, Appellant’s counsel asks that if the fact of the duplicity in the indictment cannot avail to secure the defendant’s release, it be taken into consideration in determining an application which he makes to have the sentence reduced. In view of the fact that appellant’s counsel, may have waived rights upon which he might have insisted, because of the ru ling in State v. Nichols, supra, we are of the opinion that the judgment of the court should be so far modified as to impose a sentence of foiir years alone, upon the first count of the indictment. Thus modified, the judgment is

Affirmed.