89 Iowa 405 | Iowa | 1893
Lead Opinion
The indictment upon which th'e defendant was convicted was presented by the grand jury of Taylor county on the fifth day of March, 1892. It charges that on or about the eighteenth day of February, 1892, in the county named, the defendant “unlawfully and maliciously, to injure the good name and character of G. L. Finn, and to expose him to public hatred and contempt, and deprive him of public confidence, and to bring him into public scandal and disgrace, did, on the said eighteenth day of February, 1892, write and publish, and cause to be written and published in said county, in the Southwest Democrat, a newspaper published in said county, a false, scandalous, malicious, and defamatory libel, in the form of a letter. * * *» matter alleged to be libelous is set out at length, and the' sense in which it was written and published is specified.
On the twenty-seventh day of April, 1892, the defendant filed a demurrer to the indictment, which was overruled. The defendant then petitioned for a change of the place of trial on the ground of excitement and prejudice on the part of the people of Taylor
That the general rule is as claimed by the defendant, has been settled by numerous decisions. City of Lansing v. Chicago, M. & St. P. R’y Co., 85 Iowa, 215; Orcutt v. Hanson, 71 Iowa, 514, 517; Cerro Gordo County v. Wright County, 59 Iowa, 485; Groves v. Richmond, 53 Iowa, 570; St. Joseph Manufacturing Company v. Harrington, 53 Iowa, 380; District Township of Viola v. District Township of Audubon, 45 Iowa, 104; Walters v. The Mollie Dozier, 24 Iowa, 192, 199; Burlington
Section 4260 of the Code authorizes a challenge to the panel, before indictment, when the jurors were not appointed, drawn, or summoned as prescribed by law. The defendant was not held to await the action of the grand jury by the order of any committing magistrate, and had no opportunity to object to the grand jury until after the indictment had been presented. But subdivision 5 of section 4337 of the Code provides for a motion to set aside an indictment, and requires that it be sustained when it appears “that the grand jury were not selected, drawn, summoned, impaneled, or sworn as prescribed by law.” Section 4339 of the Code provides, .that the ground stated shall not be allowed to a defendant who has been held to answer before indictment, thus in effect clearly providing for a waiver of the right of challenge when founded upon any of the defects contemplated by the subdivision quoted. State v. Gibbs, 39 Iowa, 318, 319; State v. Hart, 29 Iowa, 268, 269. Electors of the state only are qualified to act as jurors. Code, section 227.
But a person held to await the action of the grand jury waives his right to object to an indictment presented against him by a grand jury of which, an alien was a member, by failing to challenge the alien' before the jury was sworn. State v. Gibbs, 39 Iowa, 319. In State v. Reid, 20 Iowa, 413, 422, it appeared that the
It is more difficult to determine what effect should be given to the acts of a grand jury composed of but five jurors when seven are required by law. Section 11 of article 1 of the Constitution of this state provides, that no person shall be held to answer for any criminal offense higher than those in which the punishment does not exceed a fine of one hundred dollars or imprisonment for thirty days, “unless on presentment or indictment by a grand jury. * * *” Section 15 of article 5 of the Constitution adopted in the year 1884 is as follows: “The grand jury may consist of any number of members not less than five, nor more than fifteen, as the general assembly may by law provide, or the general assembly may provide for holding persons to answer for any criminal offense without the intervention of the grand jury.” Acting under that section, the general assembly amended section 231 of the Code, and provided that in counties having more than sixteen thousand inhabitants “the grand jury shall be composed of seven members.” •
The defendant contends that this provision'is mandatory, and that his right to have his casé considered by a grand jury of seven members is guaranteed by the constitution. It is true that the right is guaranteed as claimed, but the obligation to provide' a grand jury of
Section 231 of the Code, as amended, provides, that the grand jury, in counties having a population not exceeding sixteen thousand, shall be composed of five members, and that in counties having a greater population it shall be composed of seven members. Section 241 provides, that when the grand jury is to be composed of five members only, eight jurors shall be drawn for it, and that when it is to be composed of seven members the number of jurors drawn shall be twelve. Section 4291 provides, that an indictment can not be found without the concurrence of four, grand jurors when the grand jury is composed of five members, and not without the concurrence of five grand jurors when it is composed of seven members. When it is required to consist of five members, and a challenge to one has been sustained, a valid indictment may be presented by the remaining four. State v. Billings, 77 Iowa, 417, 421. In this case the indictment was presented by a grand jury which would have fully met the requirements of the law, had the population of the county been four hundred less. It was presented by five jurors acting as the grand jury, or by as many members as would have been required in
Dissenting Opinion
(dissenting). — I concur in the opinion of the majority of the court,- except as to the holding that the indictment was not void, and that the defendant has waived his right to object thereto. As to these conclusions I dissent. I am not unmindful that it is the policy of our law, ás is evidenced by statute and the decisions of this court, to require that mere irregularities and informalities touching the manner of impaneling the grand jury and the like must be taken advantage of before pleading to the indictment. I can not agree, however, that the original organization of a grand jury, composed of a less number of persons than the constitution and laws require, is such an irregularity as is contemplated, or as may be waived by any act of the defendant. It is conceded that in this case the grand jury which found the indictment was composed, when it was impaneled, of but five persons, whereas in the county of Taylor it required seven persons to constitute a legal grand jury. It will be observed that this is not a case where the grand jury was, in the first instance, made up of the legal number, and afterwards reduced by challenge or otherwise. A grand jury originally composed of a less number of persons than is provided by the constitution and laws is in fact not a grand jury at all. Such a body possesses no more power than any other five men who should assume to act as a grand jury. Nor can it be said that the fact that they are
This question has never been decided in this state. It is an important one. If the doctrine of the majority opinion is to prevail, what is to prevent the finding of an indictment, under color of law, by any body of men greater or less than is provided for by our constitution and laws, and the trial of a defendant thereon in case he fails to make timely objection thereto? Thus may the absolute guaranty of the constitution and the protection which the law affords to the citizen charged with crime be abrogated and annulled because of a failure of the defendant to insist upon his legal rights. Such a doctrine carries the law of waiver, as applied to persons on trial for a crime, to an unwarranted extent. The statutes of Florida require that fifteen persons shall be drawn to serve as grand jurors. In Gladden v. State, 12 Fla. 566, it appeared that only fourteen persons were thus drawn. No error was assigned by the plaintiff. The court said: “From a careful inspection of the first page of the record we find only fourteen persons were drawn to serve as grand jurors during the term at which the indictment was found. The statute regulating the organization of grand juries can not, by any known rule of construction, be held to authorize this; and, while no such error is assigned by the plaintiff, yet it is apparent upon the record, and, this being a capital crime, the court can not pass it by without notice. No man should be tried for a capital crime upon an indict
It is not profitable to pursue this inquiry further. The importance of the question presented seemed to justify, on my part, a brief statement of the grounds of my dissent. I am of the opinion that the failure to impanel a legal grand jury was an error fatal to the jurisdiction of the trial court, and that it was an error of a grave character, and as to a matter absolutely essential to jurisdiction, and hence could not be waived by any act, or failure to act, on the part of the defendant. In as much as the jurisdiction of the trial'court can only be based upon an indictment found by a grand jury legally organized, and as the indictment in this case was not found by such a body, no conviction can be based thereon; and the question of the court’s jurisdiction in such a case can be raised at any time, and in any man