State v. Nichols ( 1857 )

Woodward, J.

This alleged defect in the information made before the justice, is not one of the errors assigned by defendant, in his affidavit for a writ of error from the district court to the justice, nor does it appear that he urged this matter on the trial before the magistrate, but it was suggested by the district court, upon its own motion. The only question before this court, therefore, is whether the court below was correct in thus taking notice of the error, (even if there were such an one), upon its own motion, and deciding the cause upon it. After some doubt, by a part of the court, we are of the opinion that the court erred herein. The question is not, whether the complaint is double, but whether the court could take notice of it, without motion, in a case placed as this was. Section 3051 of the Code, authorizes the court to arrest judgment in two instances, on its own motion, but the present case is not within the letter of that provision, nor so far within its spirit, as to warrant the conclusion that the same course might be taken.

In Santo v. The State, 2 Iowa, 221, the defect complained of, was a radical one in the information, but as it was not assigned as an error in the affidavit, but was first moved in the district court, it was said that “ the defendant having appeared before the mayor, and had a trial, without making this question, it is not now open to inquiry.” It appears to be the intention of the law, to confine the examination generally, to the matters alleged in the affidavit which is the basis for the writ of error. This doctrine has been recognized by this court, with more or less directness and distinctness, in several cases.

The prosecutor, having embraced two offences in one complaint, could not, on his part, move to quash it, is presumed, although it is probable that he might, with leave of the court, enter a nolle proseqm; neither, as is said above, can the defendant move the matter at this stage oí the cause; and thus it presents the serious question, whether the court may, on its own motion, make a suggestion of a defect, of which it is competent for neither party to avail himself. We believe it safer to adhere to the law as hitherto recognized, and we conclude that the court erred in dismissing the prosecution.

As the district court did not act, in any manner, upon the questions presented in the affidavit, they are not before us for revision, and the cause is remitted to that tribunal, for its action thereon.

Judgment reversed.