Our cases do not suggest the concept is limited to judgment-defect cases as the State suggests. We have approved the use of nunc pro tunc orders to show the correct ruling on post-trial motions and we see no rational basis for distinction. For example, in State v. Frey, 206 Iowa 981, 221 N.W. 445 (1928) the defendant had filed motions for new trial and in arrest of judgment. The judge wrote on the calendar, by mistake, that the motions were "sustained."
Section 622.12, Code of Iowa, 1946, provides a judge is a competent witness for either party and may in his discretion order the trial to take place before another judge. And it has been the general practice in this jurisdiction that the judge who made the order hear and determine applications to correct it. National Loan Inv. Co. v. Bleasdale, 159 Iowa 529, 141 N.W. 456; Stockdale v. Johnson, 14 Iowa 178; Chariton Lucas Natl. Bk. v. Taylor, 213 Iowa 1206, 240 N.W. 740; Murnan v. Schuldt, 221 Iowa 242, 265 N.W. 369; Hamill v. Schlitz Brewing Co., 165 Iowa 266, 143 N.W. 99, 145 N.W. 511; State v. Frey, 206 Iowa 981, 221 N.W. 445; Cable Co. v. Miller, 162 Iowa 351, 353, 143 N.W. 94. Puckett v. Guenther, 142 Iowa 35, 37, 120 N.W. 123, 124, 134 Am. St. Rep. 402, states: "The proceedings adopted for such correction are not strictly adversary in their character. They are intended as a mere aid to the memory of the trial judge to make the record conform to the truth * * *.
We simply find them not on point or not inconsistent with our interpretation of section 124.402(1)(e). See Jacobs v. City of Chariton, 245 Iowa 1378, 65 N.W.2d 561 (1954) (involving revocation of sales tax permit upon finding that permittee "intentionally . . . kept a gambling device"); State v. Gardner, 174 Iowa 748, 156 N.W. 747 (1916) (involving charge of resorting to house of ill fame), overruled in part on other grounds by State v. Frey, 206 Iowa 981, 988, 221 N.W. 445, 448 (1928); State v. Reyelts, 74 Iowa 499, 38 N.W. 377 (1888) (involving nuisance conviction for "keeping intoxicating liquors"), overruled in part on other grounds by State v. Dale, 110 Iowa 215, 219, 81 N.W. 453, 454 (1900); State v. Cooster, 10 Iowa 453 (1860) (involving charge of "keeping a gambling house"). We think the Jacobs, Reyelts, and Cooster cases stand primarily for the proposition that it was not necessary for the state to show more than one instance of the prohibited conduct in order to prove its case.
The demurrer-based grounds were eliminated to make the procedure consistent with the rule (now embodied in Iowa R. Crim. P. 10(2)(b)) that defects in the indictment or information are waived if not raised prior to trial. State v. Kirkpatrick, 220 Iowa 974, 976 (1936); State v. Frey, 206 Iowa 981, 986-87, 221 N.W. 445, 448 (1928). The remaining ground for arrest of judgment is the one which Oldfather asserts: that "upon the whole record" no legal judgment could be pronounced.
We have always held courts have inherent power to make orders nunc pro tunc, and to modify their records so as to make them speak the truth. State v. Frey, 206 Iowa 981, 984, 221 N.W. 445, 447 (1928). Existing related statutes have been characterized as "merely cumulative" to this inherent power.
The building must be one in which "goods, merchandise or valuable things are kept for use, sale or deposit." State v. Jennings, 79 Iowa 513, 514, 44 N.W. 799, 799 (1890); see State v. Burns, 190 Iowa 6, 8, 179 N.W. 843, 844 (1920), overruled on other grounds, State v. Frey, 206 Iowa 981, 988, 221 N.W. 445, 448 (1928). The offense involves an intent to commit larceny.
In other words, the situation instantly involved would not permit entry of a nunc pro tunc order to make the record show truthfully what judgment was actually intended. See Headley v. Headley, 172 N.W.2d 104, 108 (Iowa 1969); Jersild v. Sarcone, 163 N.W.2d 78, 81 (Iowa 1968); State v. Frey, 206 Iowa 981, 982-984, 221 N.W. 445 (1928); Parenti v. District Court, 198 Iowa 560, 563-564, 199 N.W. 259 (1924). In the same vein, this court is not here concerned with a mere correction regarding place of commitment as in Cummings v. Bennett, 324 F.2d 1 (8th Cir. 1963).
Other cases show the meaning of the statute's prohibition of carnal knowledge "for a consideration or otherwise." Common law prostitution was the act or practice of a female in offering her body to indiscriminate intercourse with men. Consideration was not essential. State v. Gardner, 174 Iowa 748, 156 N.W. 747 (1916) (overruled as to an unrelated principle by State v. Frey, 206 Iowa 981, 221 N.W. 445 (1928)); State v. Clark, 78 Iowa 492, 43 N.W. 273 (1889); State v. Rice, 56 Iowa 431, 9 N.W. 343 (1881); see 63 Am.Jur.2d Prostitution § 1 at 365; 73 C.J.S. Prostitution § 1 at 225. Prior judicial determinations have thus given the statute a fairly ascertainable meaning.
On the same date the answer of the guardian ad litem for the minors was filed and though the record shows no hearing on the application to sell, on the same date the guardian filed his report of sale in due form, together with bond, and obtained a court order approving the sale and authorizing the delivery of the deed duly authorized to Luella Hiveley. There is no doubt in our minds that in truth and in fact the court had approved the application to sell. In State v. Frey, 206 Iowa 981, 984, 221 N.W. 445, 447, we said: "The courts have inherent power to make orders nunc pro tunc, and to modify their records so as to make them speak the truth." (Citing Hofacre v. City of Monticello, 128 Iowa 239, 103 N.W. 488, Puckett v. Guenther, 142 Iowa 35, 120 N.W. 123, 134 Am. St. Rep. 402, and other cases.)
"So that now, practically, the courts hold that the motion cannot be sustained upon the grounds which would be grounds for demurrer." State v. Kirkpatrick, 220 Iowa 974, 976, 263 N.W. 52, 53, citing State v. Frey, 206 Iowa 981, 221 N.W. 445. Code section 13790 provides that defendant may demur to the indictment when it appears upon its face either that it does not substantially conform to the requirements of the Code or that the indictment contains matter which, if true, would constitute a legal defense or bar to the prosecution.