State v. Davis ( 1966 )

Mason, J.

(dissenting) — I concur in what is said in Division II of the. majority opinion. However, because of what is said- and the reasons given for affirming the case in Division I, I dissent.

■ In this Division the majority say that defendant’s first contention has been decided against him by the holding in State v. Griffin, 257 Iowa 852, 135 N.W.2d 77. In my opinion chapter 444, Laws of the Sixty-first General Assembly, is simply a codification of an existing constitutional right to a fair trial.

In the Griffin case, supra, at page 855 of 257 Iowa, page 79 of 135 N.W.2d, the court said:

“A majority of the members of this court are of the opinion ' the proposed procedural change, while meritorious and- representing the modern view on proper procedure in these cases, should not be made by us while the General Assembly is considering corrective legislation similar to that adopted by statute in a number of states. This view is based not only on the General Assembly’s present consideration of the problem but because a question of denial of due process is not reached.”

The legislature was in session when the Griffin ease was argued before the court and what is now chapter 444 was then being considered. The court then determined there was no denial of due process. I do not agree and would reverse because of the procedure followed by the State in reading to the jury that portion of the indictment relating to prior convictions.

Rawlings, J., joins in this dissent.