127 Iowa 168 | Iowa | 1905
Tbe record before us makes it appear that tbe defendant was indicted in tbe Clay county district court at tbe April, 1903, term thereof, the offense charged being obtaining property by false pretense. At the September term, 1903, and tbe defendant being present, tbe prosecution moved to set aside tbe indictment so found at the previous term, and that tbe charge against tbe defendant be resubmitted to tbe grand jury. Over tbe objection of defendant, tbe motion was sustained, following which tbe grand jury was called into open court, and tbe defendant given opportunity to examine and challenge for cause. Thereupon the persons appearing as grand jurors were examined by counsel for defendant, and of tbe seven called six answered that they bad sat as a member of tbe grand jury which at tbe April term bad voted and returned an indictment against tbe defendant charging him with having obtained property of one J. D. Carson by false pretense. Each of tbe six men answered that evidence in respect of tbe facts connected with the offense of which defendant was accused was taken before tbe grand jury and considered, and each severally answered that from such evidence he formed an opinion as to tbe guilt of the defendant, which be then expressed, and, based thereon, be voted to return an indictment. Each answered also that tbe opinion then formed still remained with him, and that, if the same evidence was again submitted to him as a grand juror, he would
We are not advised as to tbe cause for setting aside tbe indictment first found, nor do we think such to be material. Upon tbe entry of tbe order tbe case then stood as though no presentment bad ever been made, and, accordingly, the defendant became possessed of the full right of challenge, to be exercised when thereafter it was sought to resubmit bis case to tbe grand jury. Code, section 5243; State v. Gillick, 7 Iowa, 287; State v. Osborne, 61 Iowa, 330. This right, as we have seen, was not denied to defendant. Tbe entire controversy arises out of the rulings of tbe court in respect of tbe challenges interposed by tbe defendant to the several veniremen called to make up tbe grand jury. It is tbe statute (Code, section 5243) that a challenge to an individual grand juror may be made by tbe defendant when it appears that be has “ formed or expressed such an opinion as to tbe guilt or innocence of tbe accused as would prevent bim from rendering a true verdict upon tbe evidence submitted on the trial.” Tbe effect of tbe provision, as we
In the instant case it will be observed that each of the six veniremen called to answer as to his qualifications de-' dared not only that he entertained an opinion as to the guilt of the defendant, but that should he sit as a member of the jury upon resubmission, and the same evidence being again brought forward, he would vote for an indictment. To our minds the jurors were clearly incompetent and the several challenges should have been sustained. We need not stop for a discussion of the subject in general. It was gone over at length in the recent cases of State v. Crofford, 121 Iowa, 395, and State v. John, 124 Iowa, 230, to which the reader is referred. Suffice it to' say that, as a result of the rulings upon the challenges made — and this must be apparent to all — a grand jury was made up of men, with one exception, who went out not to deliberate, but to vote another indictment, conditioned only upon there being again submitted the evidence upon which the former presentment was predicated. In the face of a situation thus appearing by frank confession, the fact that the jurors have no bias or prejudice against the accused is a matter of no moment whatever. Their unfitness is established by their belief in his guilt, and their declaration that, given opportunity, they will upon the same evidence again vote for an indictment. It may be that a grand jury composed in its entirety of men who had no information or belief upon the subject of the guilt of the accused would have voted to indict upon the evidence when presented as readily as did the jury in fact impaneled. But there was the chance that the charge might be ignored, and the statute gave to the defendant the right to have the benefit of that chance. We hold, therefore, that the indictment* upon which the defendant was tried was not found by a grand jury legally ’ impaneled and sworn. In view of this conclusion we need not give attention to any of