State v. Carter

Sherwin, J.

The defendants were indicted in September, 1907, for a crime charged to have been committed in July, 1907. They filed a motion to quash the indictment, which motion was based on the ground that the grand jury returning the indictment was not drawn, summoned, impaneled, or sworn as provided by law. The motion was overruled, and the correctness of the ruling is before us for review.

The facts upon which the motion was based are substantially as follows:- In 1906 lists of names of grand jurors for 1907 were returned to the auditor of the county of Polk under the provisions of section 337 of the Code. At the January, 1907, term of the district court of said county, the -Des Moines Civic League, through its attorneys, filed in the office of the clerk of the district court a paper denominated a motion, in which it was alleged that the grand and petit juries of the county for the year 1907 had been illegally selected and drawn in certain particulars named therein, and advising the court that, if found desirable, it might investigate and determine the matters complained of. Thereafter one of the judges of the district court, with the full concurrence of his associate judges, found that the lists of persons from which the grand and petit juries were to he drawn for the year 1907 were illegally selected and set them aside. The Legislature convened soon thereafter, and its attention was directed to the situation that had been found to exist in Polk County and other counties of the State, and, to meet the emergency and to provide the means for securing grand and trial juries under the like and similar circumstances, it enacted chapter twelve, of the Acts of the Thirty-second General Assembly, which, so far as is material to our present inquiry, is as follows:

*374 Wherever it has been or hereafter shall be found or determined by the district court in any county that, for any cause, the lawfully constituted grand jury or a like petit jury has not or cannot be obtained by drawing from the names returned by the election officers to the county auditor to serve as jurors, or that lawfully qualified talesmen cannot be selected by drawing from the list of names, or that the term for which such lists were drawn has expired, the said court may order the board of supervisors of said county to prepare lists of names of persons having the qualifications required by law for grand jurors, petit jurors and talesmen. The court ordering shall fix the time of meeting of said board of supervisors therefor and shall prescribe the time and manner of notice thereof to be given the several members of such board. Said notice may be served by any person and proof of service shall be the same as that of original notice.

The law became effective by publication on the 22d day of March, 1907, and immediately thereafter new lists of jurors were prepared and returned by the board of supervisors, as provided in the act. The grand jury which found the indictment against these defendants was drawn from the list so prepared by the board of supervisors. The appellants contend that the lists prepared and returned by the judges of election under the provisions of Code, section 337, were illegally set aside, that the district court was without jurisdiction to make the order setting them aside, and that because of such illegal action the grand jury drawn after the passage of chapter twelve, Acts 32d General Assembly, was illegally drawn.

_ 1. Criminal law: grand jurors: selection: statutes. The purpose of the -Legislature in enacting chapter twelve was- to meet the exact situation existing in Polk County, as well as in other counties of the State. This was well known to the courts and to lawyers generally. Such being the case, the enactment should be so construed as to carry out its plain' intent without giving a technical meaning *375 to the words “determined or found.” State v. Pell, 140 Iowa, 655 . In passing the act the Legislature did not attempt to determine whether the lists in Polk and other counties had been legally set aside. The conditions existed, and the act was intended to afford means for securing new lists without delay. Nor need we determine whether the original lists were legally set aside. If it appears from the entire record that no valid objection to the grand jury which-, returned the indictment can be made, except the erroneous discharge of the first, no substantial right of the defendants has been invaded, and there should not be a reversal. Code, section 5462. In State v. Hughes, 58 Iowa, 165 , there was a. similar motion to quash the indictment based upon substantially the same state of facts as appears herein (excepting the effect of chapter twelve, 32d General Assembly), and it was held that the motion was properly overruled. See, also, State v. Hart, 67 Iowa, 142 . The defendants had no constitutional or statutory right to have their case acted upon by a particular grand jury, and, if the one returning the indictment was legally drawn and selected, they have no ground for complaint. State v. Pell, supra.

We suggest, also, without determining the question, that the district court has the inherent power to set aside a list or panel of jurors on its own motion, whenever it shall be made to appear that a legal grand or trial jury cannot be drawn therefrom. As sustaining this suggestion, see: 20 Cyc. 1331 and cases cited; 24 Cyc. 312 and cases cited; Keady v. People, 32 Colo. 57 ( 74 Pac. 892 , 66 L. R. A. 353); Cochran v. U. S., 14 Okl. 108 ( 76 Pac. 672 ); People v. Barker, 60 Mich. 277 ( 27 N. W. 539 , 1 Am. St. Pep. 501); O’Neil v. Iron Co., 67 Mich. 560 ( 35 N. W. 162 ). In some of the States it has been held that a challenge may be made by a wholly disinterested person as amicus curiae. Com. v. Smith, 9 Mass. 107 ; *376 People v. Jewett, 3 Wend. (N. Y.) 314. See, also, 3 N. J. Law J. 153 ; 1 Bishop on Criminal Procedure, section 877.

2. Grand juries: selection: nonprejudicial irregularities. Section 337d, Code Supp. 1907, directs that the board of supervisors shall separately certify the lists for grand and petit juries and for talesmen. This was not done. The lists were returned to the auditor, and, after being recorded by him, all lists were certifled on the record thus made. This was a substantial compliance -with the statute and was sufficient. State v. Ryan, 70 Iowa, 155 ; State v. Edgerton, 100 Iowa, 63 ; State v. Pell, supra. An irregularity in drawing the grand jury will not invalidate an indictment, unless it appears or may reasonably be inferred from the circumstances that some prejudice has resulted from such irregularity. State v. Brant, 41 Iowa, 593 ; State v. Carney, 20 Iowa, 82 ; Shaw v. Orr, 30 Iowa, 355 .

3 Trial: examination of exhibits by defendant. Certain instruments in writing were put in evidence by the State, and the appellants complain because they were not permitted to take them from the courthouse and from custody of the clerk or county attorney for the purpose of examination, They were offered every opportunity for' a full examination of such instruments, and did in fact examine them and cross-examine upon them, and, if they wished to have experts examine them as to handwriting, no obstacle was placed in the way of so doing, except that they were denied permission to take them away with them. We see no ground for serious complaint in the ruling. All that the defendants could ask was that they be given fair opportunity for examination at some place.' They had no right to designate such place, or to remove the exhibits from the custody of the court.

*377

4. Exclusion of evidence: prejudidce.

*376 The indictment charged that the defendants- and others conspired together for the purpose of unlawfully se *377 curing the signature of E. L. Stevenson and Lulu Stevenson to a deed. Lulu Stevenson is the wife of E. L. Stevenson, and she was the owner of the property involved in this transaction. She testified as a witness for the State, and upon her cross-examination counsel for appellants sought to show that she had theretofore brought a suit to recover her property and a suit for damages. Objections to the questions were sustained, and appellants complain of the ruling. Answers to the questions might have had some bearing on the interest of the witness in the prosecution, and they were in our judgment competent and material; but her interest in the prosecution was then as apparent as it could have been h.ad the questions referred to been answered, and there was no prejudice in the ruling.

5. Exclusion of conceded EVIDENCE. In the absence of one of the State’s expert witnesses, the appellants admitted that he would, if present, give certain testimony. Thereafter they ashed an instruction directing the jury to disregard such testimony because the State had not complied with an . alleged agreement under which the appellants admitted that the witness would so testify. The request was properly refused for the sufficient reason, among others, that the alleged agreement was not proven.

6 Evidence: conversations. The appellants attempted to prove a conversation that Carter had with some unknown man relative to Kirksville, Mo., property and the details of Carter’s statements to one of the witnesses. These witnesses were anowed to testify that there were conversations about Kirksville property, and that matter was alone material. There was no error in rejecting the balance of the conversation.

"VVe find no. error for which there should be a reversal of the judgment. It is therefore affirmed.