Citation Numbers: 64 Iowa 306
Judges: Seeyers
Filed Date: 9/17/1884
Status: Precedential
Modified Date: 7/24/2022
It is provided by statute that, if, in prosecutions before a justice of the peace, the defendant is acquitted, the justice, if he is satisfied that the prosecution is malicious or without probable cause, shall tax the costs against the prosecuting witness, from which taxation of costs he may appeal to tlie district court. The justice, if an appeal is taken, must “make out, sign and file in the case a full and true statement of all the testimony admitted on the trial, and on which he bases his finding that the prosecution was malicious or without probable cause, and without delay make a
Under this statute, the justice is undoubtedly invested with a discretion, and his conclusion cannot be reversed by the district court, unless the justice has abused the discretion with which he is invested. Palo Alto County v. Moncrief 58 Iowa, 131. The statute has been materially changed since The State v. Roney, 37 Iowa, 30, was determined.
Thé statute contemplates that the district court should be informed of the facts — that is, the evidence and all the circumstances'as they appeared before the justice; and should then determine whether the justice has abused the discretion reposed in him. Hence, ample power is given the court to correct the justice’s transcript and his statement of the evidence, and, when this has been done, then the court may, upon the record thus corrected, render such a judgment as the justice should have rendered. It is true, the case gets into the district court by appeal, but the proceeding is more in the nature of a writ of error than an appeal, for the reason that the judgment is to be corrected by an inspection of the corrected record. If there was to be a re-trial, that is, new evidence introduced, in the district court, the provision for the correction of the statement of the evidence made by the justice would be unnecessary and useless. Again, if new evidence can be introduced in the district court, and a new case made, how can the court determine whether the justice abused his discretion or not?
We do not have before us the transcript of the justice or his statement of the evidence, nor, .does it appear that the appellant sought to have the transcript or the statement of the evidence corrected. The appellant, however, sought to introduce evidence tending to show that the prosecuting witness, prior to filing the information, had stated the facts to an attorney at law, and was by him advised that the defendant was guilty of the crime charged in the information. This evidence was rejected-. We are unable to say certainly, from the record, whether evidence of a similar character was introduced before the justice or not, but we think that the appellant sought, by- the introduction of evidence, to make a new case. That is to say, he sought, by the introduction of evidence not introduced before the justice, to have the court to determine, as an original question, that the prosecution was not malicious, and wasnot commenced without probable cause, and thus to have the finding of the justice reversed. This, under the statute, cannot he done.
Affirmed.