McCandless v. District Court of Polk County

Thompson, J.

(dissenting) — The sole proposition by which the county attorney of Polk County, as attorney for the respondent, attempts to support the trial court’s holding is thus stated, under the heading of “Proposition Belied on for Annulling the Writ: Section 795.2, Code of Iowa, 1950, does not run until after there is an arraignment and plea of Defendant.” The trial court, in overruling defendant’s motion to dismiss, said: “In this case, it appears to the court that it would be unconscionable to sustain the Motion. Therefore, the motion is overruled. It seems that there is ample good excuse here, and I have very serious doubts if- this statute begins to run until after there has been an arraignment.”

The first, and apparently the major, ground upon which the court acted, that it would be “unconscionable” to grant the motion, of course means nothing. It'is not argued; nor is there any claim now made that the state showed “ample good excuse”, or any excuse, for its long failure to go forward with the prosecution. The sole proposition set out by the county attorney is quoted above. The majority opinion, following Hottle v. District Court, 233 Iowa 904 , 11 N.W.2d 30 , properly holds the statutory period begins to run from the time of finding the indictment; arraignment is not necessary to start it. But the majority finds another ground, not relied upon by the trial court, not listed as a proposition for affirmance by respondent, for upholding the ruling made below.

I. We have held in Pines v. District Court, 233 Iowa 1284 , 10 N.W.2d 574 , it is incumbent upon the defendant to demand a trial before he can claim the rights accorded him by sections 795.2 and 795.3 of the present Code, and of section 10 of Article *612 I of the Constitution of the State of Iowa. If he does not demand a trial he is deemed to have waived them. The question before us here then becomes a narrow one. It is this: Is a promise by the county attorney to advise defendant, through his counsel, whether an indictment has been returned, something upon which the accused may rely ? It is evident a defendant cannot demand a trial until he knows he has been charged with the commission of a crime.

It is apparent this case goes beyond anything we have approved to date, in Pines v. District Court, supra, and other cases. Conceding demand is necessary, the majority now enters into the field of determining where and how the demand must be made. It sets out the correspondence between Mr. Clyde E. Herring, county attorney of Polk County, and petitioner’s attorney. The letter from Mr. Guthrie, under date of September 2, 1952, after referring to previous correspondence, says if the defendant should be indicted, “we will produce him for arraignment at your request on two days notice if that is agreeable to you. Inasmuch as the plea will be not guilty, we also request that in such event, the case be set for trial to a day certain in order that we may be on hand for trial.” On September 4 Mr. Herring replied, saying the case had not come before the grand jury; and, “Please be assured that I will keep you advised of whatever action the Grand Jury takes on this case.”

While the majority does not stress the point, it is evident a demand for trial in ease an indictment were returned was made by petitioner’s counsel. The majority says such demand must be made by formal motion in open court. With this highly technical interpretation of a defendant’s right to a speedy trial under our constitution and statutes I am unable to agree, although I do not consider it the controlling question in the case.

It is implicit the majority holds the petitioner had no right to rely on the assurance of the county attorney that he would notify counsel if an indictment were returned. The appearance bond required by section 763.4, Code of 1950, when a defendant is held to answer to the district court, contains this provision:

“We, * * * hereby undertake that the said * * * [defendant] shall appear at the district court of the county of ...................., *613 at the next term thereof, and answer said charge, and submit to the orders and judgment of said court * *

From this it is the apparent thought of the majority that the defendant, petitioner herein, was bound to appear at the next term and discover for himself what had happened.

He was held to the grand jury after hearing before a magistrate, on August 13, 1952. The next term of the district court of Polk County commenced on September 2, but the grand jury did not return an indictment until October 10. If the majority is correct, it was the petitioner’s duty to be at the • courthouse in Des Moines each day from September 2 until October 10, or such later time as the convenience of the grand jury might determine, ready to “answer the charge and submit to the orders and judgment of the court.” He had no control over the time when his case would be acted upon by the grand jury, and of course no means of knowing when it might be. It is understandable why his counsel tried to avoid this waste of time and motion, and it was a courtesy commonly rendered for the county attorney to promise to co-operate. Yet the majority says he had no right to rely upon the written promise of the prosecutor, but must hold to the letter of his bond. If there had been no charge pending against him, and the grand jury, as it often does, had returned an indictment or a true information had been filed, of which he had been given no notice for the time which elapsed here, I doubt even the majority would say he was bound to make a demand for trial in order to preserve his constitutional and statutory rights. But the situation as it actually exists is no different unless the county attorney had no right or authority to make the promise he did. If he had such right or authority, it follows the petitioner was entitled to rely upon it; and so long as he did so rely he surely could not be said to have waived his rights by failure to make a demand for trial.

Turning upon the same point is the added holding of the majority that a demand for trial must be formally made in open court. A demand for trial, if an indictment were returned, was contained in the letter from Mr. Guthrie to Mr. Herring under date of September 2. It was in reply to this letter Mr. Herring wrote, on September 4, “Please be assured that I will *614 keep you advised of whatever action the Grand Jury takes on this ease.”

We need not speculate upon the reasons why Mr. Herring failed to keep his word. Very likely his promise was forgotten in the press of other affairs. Apparently he did not recall it even when his office started on the following April, six months later, to forfeit petitioner’s appearance bond. In any event, the arrangement was of a type often made by lawyers both in criminal and civil cases. In fact, it would be intolerable if they could not in good faith enter into such agreements. When the majority hold such arrangements are not binding and all dealings must be at arm’s length by formal procedure in open court, they are shutting their eyes to the realities of the practice of law and imposing a heavy additional burden upon litigants. It is usual practice for counsel to agree as to times for trial and upon a multitude of details which save time and expense for all concerned. No good reason is suggested why this should not be done, or why there was anything wrong with the plan agreed to by Mr. Guthrie and Mr. Herring here. If it was proper — and there are few experienced practicing lawyers who will say it was not — then petitioner and his counsel had a right to rely upon it. It follows petitioner had no notice, and was bound to take no notice, of the indictment against him until the proceeding to forfeit his bond was commenced over six months and three terms of court later.

II. The authority of prosecuting attorneys in handling criminal cases has been passed upon by the courts many times. The duties of county attorneys are prescribed by section 336.2 of the 1950 Code. The general rule as to the authority of the prosecutor in criminal cases is laid down in 27 C. J. S., District and Prosecuting Attorneys, section 14, pages 403, 404:

“Generally speaking, the prosecuting attorney is charged with the duty of determining when to commence a particular prosecution and when to discontinue it, and has control of criminal proceedings in the trial court. While a case is under the control of the prosecuting attorney any agreement he may make with reference to the disposition thereof is binding so far as it is proper and legal * *

*615 "We have ourselves said in an early case: “While the case is in the District Court, it-is without doubt, under the control of the District Attorney. Any agreement he may make with reference to the disposition of the cause, so far as it is proper, or within the limits of the law, should be regarded as binding.” State v. Fleming, 13 Iowa 443, 444 .

The Montana Supreme Court has said: “The county attorney in this state, not only directs under what conditions a criminal action shall be commenced, but from the time it begins until it ends his supervision and control is complete, limited only by such restrictions as the law imposes.” Halladay v. State Bank of Fairfield, 66 Mont. 111, 118 , 212 P. 861, 863 .

In Laughlin v. Clawson, 27 Pa. 328, 330 , the Pennsylvania Supreme Court used this language: “If such officers [of the state] make a mistake, it is an error of government itself, and government cannot allow the citizen to suffer for his trust in its proper functionaries.”

From Coster v. State, 16 Ala. App. 191 , 76 So. 475 , is this: “While the relation of attorney and client does not exist between the solicitor and the state, his solemn admissions in the progress of the trial of a ease are nevertheless binding upon the state.”

Many authorities exemplify the extent to which the prosecuting attorney may bind the state. In Commonwealth v. Ragone, 317 Pa. 113, 118 , 176 A. 454, 456 , the prosecuting attorney had agreed a verdict of not guilty by reason of insanity might be directed. The trial court refused to so direct, but submitted the case to a jury which found defendant guilty. The Pennsylvania Supreme Court reversed saying: “That the district attorney acted within the scope of his official authority in committing the Commonwealth to the proposition that the defendant was insane is nowhere challenged. Such a challenge could not be sustained, in the absence of any proof or imputation of bad faith or improper conduct on the part of the Commonwealth’s representative.”

It is said the county attorney is charged both.in criminal and civil cases with the exercise of judgment and discretion, and is presumed to use sound judgment in carrying out his grave *616 responsibilities. State ex rel. Ilvedson v. District Court, 70 N. D. 17 , 291 N.W. 620 .

At page 5, 1940 Opinions of the Attorney General of Iowa, is laid down the rule that section 336.2 vests in the county attorney a broad discretion as to the manner and means by which the laws of the state are to be enforced. Southard v. People, 69 Colo. 516, 518 , 195 P. 102, 103 , was a case involving the right of a district attorney to agree to a continuance. He had not carried out the agreement. The Colorado Supreme Court said: “The bail in the instant case had the right to assume that the district attorney would carry out his agreement to move for or consent to a continuance, and had good cause to believe that the case would be continued. He relied on the agreement, apparently in good faith.” It was held the answer setting- up the agreement of the district attorney pleaded a good defense.

The general authority and duty of an attorney is discussed in State ex rel. Commissioners of Land Office v. Jones, 198 Okla. 187, 190 , 176 P.2d 992, 996 , 174 A. L. R. 1. After pointing out that attorneys are officers of the court, the Oklahoma Supreme Court said: “ * * if the court or an officer of the court * * * have misled parties as to the time cases will be tried, the absence of such parties will be excused.’ ” This was a civil ease, but under the general rules above-cited as to the right and authority of the public prosecutor in conducting criminal cases it is equally appropriate.

The majority pays little attention to the question of the extent to which the prosecutor may bind the state by preliminary agreements such as was made here. It prefers to pass off the promise of the county attorney of Polk County to notify petitioner’s counsel if an indictment should be returned with the statement that “this transaction, nevertheless, is little more than petitioner’s misplaced confidence or a failure of the county attorney to carry through on a courtesy he personally assumed.” I agree it was a case of misplaced confidence, but I cannot so readily concur in the thought it was a mere courtesy which Mr. Herring could continue or abandon at his will, without any effect upon the petitioner’s rights. He was appealed to in his official capacity to advise if an indictment should be returned, *617 and asked to set the case for trial if it were. He agreed to keep petitioner’s counsel informed, and, for a reason not disclosed in the record, paid no more attention to his promise. No authority is cited by the majority which holds he could not bind the state by this simple agreement, which in no manner affected the merits •or substantial issues of the case. There is none.

The majority, again with no citation of authority, lays down the rule that “the law does not confer upon the county attorney the right to dismiss any indictment without the court’s approval.” While absence of' right to dismiss an indictment is a far cry from absence of the right to make an agreement to ■advise a defendant if an indictment is returned, I think the majority is on debatable ground in making the statement quoted. The general rule is to the contrary. “The weight of authority is to the effect that in the absence of a statute on the subject, the entering of a nolle prosequi before the jury has been impaneled and sworn lies in the sole discretion of the prosecuting officer.” 14 Am. Jur., Criminal Law, section 296, page 967. In Commonwealth v. Buck, 285 Mass. 41 , 188 N.E. 613 , 614, the prosecuting attorney had entered a dismissal of a complaint pending in district court. It was urged he had no right to do so, but the Massachusetts Supreme Court held the matter was in his charge and the case was properly nolle prossed, in his discretion. This case was cited and approved by us in State v. Veterans of Foreign Wars, 223 Iowa 1146, 1149 , 274 N.W. 916, 917 , 112 A.L.R. 383 , although the exact point under consideration here- was not there present.

The question was squarely before the Kansas Supreme Court in State v. Finch, 128 Kan. 665 , 280 P. 910, 915 , 66 A. L. R. 1369. There an informer had advised the attorney general of Kansas of the whereabouts of a liquor still, as a result of which a raid was made and one Brown arrested, accused and pleaded guilty. Brown thereupon advised the county attorney of Shawnee County that- Finch, the informer, was in partnership with him in the operation of the still. The county attorney proceeded to prosecute Finch. The attorney general, who had promised Finch in return for his information he would be immune to prosecution, appeared in the case and moved to dismiss. The *618 court denied the motion and Finch was convicted. The supreme court held the attorney general, as the superior prosecutor, had the unqualified right to dismiss the case. The conviction was reversed with instructions to dismiss. To the same effect is Foley v. Ham, 102 Kan. 66 , 169 P. 183, 185 , L. R. A. 1918C 204. If we are to join the minority which holds a charge may not be dismissed without the consent of the court, we should do it in a considered opinion when the point is raised, and not by casual dictum. I have pointed out it is not necessary to uphold the right of the prosecutor to dismiss an indictment to sustain the validity of what the county attorney did here.

Cases cited by the majority holding it is not required that the prosecutor give defendant notice of an indictment or of a date set for trial are of course not in point; he did agree to give such notice here, he was within his authority in so doing, and if he was, then the petitioner was equally within his right in relying on the promise. If the question is asked how this affects the duty of the petitioner to make demand for trial, the answer is obvious. Depending upon the written assurance of the county attorney he would be advised if an indictment were returned, he had no knowledge that it had been, and he would not be expected, even by the majority, I apprehend, to make a demand for trial without knowledge there was anything to try. Mr. Herring in effect said to him: “I will advise you' if an indictment is returned.” He did not advise; the petitioner ‘had every right to assume there was no indictment. The prosecutor could have said to Mr. Guthrie, “Your bond requires you to appear at the next term and obey the judgments of the court; I shall expect you to do so, and I make you no promise.” But, in common courtesy and following a practice long established among lawyers for the convenience of themselves and their clients, Mr. Herring agreed to advise. It was a matter of the smallest effort to him and would enable all parties to know if and when the trial was to be had and to arrange their affairs accordingly.

The majority goes to some length in citing cases which agree with Pines v. District Court, supra, in holding that ordinarily a demand is necessary before a defendant charged with *619 a crime may complain of failure to have a speedy trial. Of course none of these in any way touch our situation here, where the petitioner, because of the agreement of the prosecuting attorney, had no knowledge he was under indictment. This applies as well to People v. Foster, 261 Mich. 247 , 246 N.W. 60 , where it was held, without citation of authority or any discussion or reasoning, that a demand for trial made upon the prosecuting attorney or upon the court in chambers was not sufficient. I should much dislike to follow this ease, even if it were in point. The.county attorney is an officer of the court and in charge of prosecutions, and it should not be necessary for an accused to file a formal demand in order to assert his rights. How, in such case, is a defendant unable to employ counsel to proceed? But in any event the case does not reach the point we have here: Was the county attorney within his authority in making the agreement he did, and was the petitioner entitled to rely upon it ? If these are answered in the affirmative, as they' should be, we have the picture of a defendant who has been promised by the very public official in charge of his prosecution that he will be advised if an indictment is returned, and who more than six months later finds the promise has not been kept, being penalized for having “waived” his right to a speedy trial. The majority speaks of his “strange silence.” This statement can be explained only by the thought he should not have relied upon the prosecutor’s written assurance. There is nothing in the record otherwise to show why there was anything “strange” in waiting for the promised word.

I should not and shall not close this dissent without giving attention to the statement of the majority: “Logic does not demand that we reward one charged with a crime for the mere neglect of an officer, nor that we punish the state and society for that same failure of an officer, unless the accused in some way absolves himself from fault by at least calling the court’s attention to the matter.” This is to say no mistake, no inadvertence, no incompetence, no failure to keep his agreement by a prosecuting attorney should be taken advantage of by an accused, nor should he ever go free because of such failures; but he himself must call them to the attention of the court. The *620 reasoning would apply equally to the failure of the prosecutor to object to improper defense questions, or to offer evidence available which might aid the state’s case, or to list witnesses valuable to the state upon the indictment or information, to object to improper conduct of defense counsel. It would apply to a fatal mistake in drawing an indictment or information, or to any one of a hundred other negligences or indifferences of prosecuting officials in performing their duties. The reasoning of the majority quite evidently is that the accused'is presumed guilty, and we shall recognize no mistake or failure of the county attorney to honor his agreements which permit a defendant to go free, his constitutional and legal rights to the contrary notwithstanding. I think the petitioner was entitled to those rights.

It is suggested there is no showing petitioner was prejudiced by the delay. We held in Pines v. District Court, supra, that an accused is entitled to the protection of the constitution and of the implementing statutes whether he is held in jail or is free on bond, and we there quoted with approval from State v. Keefe, 17 Wyo. 227 , 98 P. 122 , 22 L. R. A., N.S., 896, 17 Ann. Cas. 161, to the same effect. There are many ways in which one at large upon bail may be prejudiced by failure to have a speedy trial. He is under mental strain and harassment; he is under public suspicion while the charge is- pending; his witnesses or other evidence may be-lost or procurement be made •impossible or more difficult; he may be prevented from arranging his affairs as he otherwise would. An even better answer to this' contention lies in the rule prejudice is presumed unless the record affirmatively shows to the contrary. In re Estate of Hoyt, 180 Iowa 1250, 1256 , 163 N.W. 430 , and many other cases lay down this well-recognized' principle. Perhaps the conclusive answer, however, is that the petitioner is asking for a right given him by the constitution and the statutes of Iowa. The framers of the constitution and the legislature which enacted the statutes sought to remedy or prevent a recognized evil in the administration of the criminal law. The petitioner has been denied the right granted him; the mischief which the constitution and the statutes were aimed 'to eliminate clearly appears. *621 Prejudice arises on the face of the record from the denial of the protection of the constitution and statutes. The litigant who relies upon the statute of limitations is not required to show that he has been prejudiced by the undue delay, and the same reasoning applies here. We have gone as far as we should in restricting the application of the law in these situations; we should not take the further step of holding the accused may not rely upon the agreement of the county attorney to advise him if an indictment is returned.

By way of summary, it is my belief the rule that a defendant must make demand for trial before being permitted to claim his constitutional and legal rights to a prompt trial does not — in fact cannot- — apply until he knows he is charged. Further, the fact he has furnished an appearance bond which specifies he shall appear at the next term of the district court is not material when the state, through its duly elected prosecuting attorney acting within the scope of his authority, has agreed to advise him if he is indicted. It was the state which waived its rights here. It was clearly within the power of the county attorney to make this agreement. The petitioner had a right to rely upon it, and to believe he had not been indicted because he was not so informed by the prosecutor. The only escape from this conclusion is either by holding the county attorney had no right to agree as he did, which would be contrary to all authority and reason; or that the petitioner should have known better than to rely upon a mere giving of his word which Mr. Herring was not bound to, and did not, honor. I doubt Mr. Herring himself would agree with this implication of the majority opinion, nor do I. If the county attorney had the right and power to make the promise the petitioner had the right to rely upon it. Belying on it, he had no duty to make a demand for trial until he knew an indictment was returned.

I would sustain the writ.

Hays, C. J., and Bliss and Oliver, JJ., join in this dissent.