State v. Carney

| Iowa | Feb 1, 1866

Dillon, J.

I. These cases involve similar questions. The defendants Were severally indicted for different offenses.

Section 4691 of the Revision provides, inter alia, that a motion to set aside the indictment may be made by the defendant, and “ must be sustained when the grand jury were not selected, drawn, summoned, impanneled or sworn as prescribed by law.” Under this section, the defendants, Carney and Stutz, moved to set aside the indictment against them on the following grounds :

1. Because, under § 2725, the jurors were not apportioned on or lefore the first Monday of September. (This objection is not sustained in point of fact.)

2. Because the clerk, instead of the sheriff, served the apportionment upon the judges of election. (This objection was sustained by the evidence.)

aines? return. 8. Because the judges of election did not return proper lists of the names of the grand jurors to the county judge, as required by § 2727. (This section is altered, an(i the returns must be made to the supervisors instea¿ 0f the county judge. Revision, §§ 330, 333.)

_re c°rd. 4. Because the county canvassers did not make lists for delinquent townships. (The records of the board 0f caimissers do not show that such selection was made, but it is not required by law that there should be a record of this kind made and preserved.)

5. Because lists of jurors, in the poll books returned by the township trustees, are not certified to by the judges of election.

It may be admitted that this objection is true, in point of fact. In the case of State v. Hunt, and the State v. Wade, the grand jury that found the indictments were selected from a list of seventy-three, instead of seventy-five names.

3__5tat_ tory-'substantial compliance: In all of these cases we find, on examination, a substantiol compliance with the requirements of the law. The provisions of ch. 115, in relation to - . . mode of obtaining jurors, are directory.

But it is argued by the defendant that under section 4691, above quoted, the indictment must be set aside unless each and every successive step pointed out in that chapter has been exactly and precisely complied with.

We can scarcely believe that such was the intention of the legislature. Deviations. of a slight and unimportant nature, such as those complained of by the appellants, almost always occur, and they always will. But we may concede, for the purpose of these appeals, that the District Court should have sustained each of the motions; and yet, under section 4925 of the Revision, which prescribes our duty, the judgment must be affirmed. This section provides that “the Supreme Court-must examine the record, and, without regard to technical errors or defects, which do not affect the substantial rights of the parties, render such judgment as the law demands.”

The alleged error of the District Court in overruling the motions to set aside the indictment, did not affect the “ substantial rights ” of appellants, for the reason that there was no substantial departure from the statutory mode, in the selection of tbe grand jury.

If Stutz had been allowed to withdraw his plea of not guilty, and had filed his motion to set aside the indictment on the above grounds, the motion ought not to have been granted.

We perceive no error to bis prejudice in the ruling of the court.

4. intoximotors: revenue license. II. Carney and Stutz were indicted under the State law for the “ suppression of intemperance.” They asked cerfain instructions, which were refused, based upon tbe proposition that this law was in conflict with x x the Constitution of the United States (art. 4, § 2; art. 6; art. 1, § 10, relating to the inviolability of contracts), and tbe Internal Revenue Act of Congress of July 1,1862, under which, tbe defendants bad licenses. These licenses do not authorize tbe holders thereof to violate the laws of tbe State. Act of July 1, 1862, § 67.

This is plain upon tbe act itself, and it is not necessary to enter upon an extended discussion of tbe subject.

Tbe judgments will each stand

Affirmed.