17 Iowa 8 | Iowa | 1864
The Revision, like the Code of 1857, declares that an objection to the grand jury, or an individual juror, cannot be interposed by a defendant, for any cause of challenge, after the jury are sworn. (§ 4619.) For a construction of this section see the following cases; Dutell v. The State, 4 G. Greene, 125; Norris’ Home v. Same; 3 Id., 513; Dixon v. Same, 3 Iowa, 416; State v. Hinkle, 6 Id., 380. Assuming, therefore, that the defects were such as would have availed defendants if presented at the proper time (which is by no means admitted), we conclude that the objection was taken too late, and was properly overruled. That they were ignorant of the matters upon which they rely, at the time of forming the grand jury, we give but little weight, as it is quite manifest, that they might have possessed themselves of the requisite knowledge, by the use of ordinary care and diligence.
The question now before us is, whether we can find that the court below erred in refusing the change of venue. The law is that the court “ in the exercise of a sound discretion must decide the matter of the petition when fully advised according to the very right of it.” Rev., § 4733. This language is substantially the same as that used in the Code of 1851, § 3272, and under which the cases of Gordon v. The State of Iowa, 3 Iowa, 411; and State of Iowa v. Barrett, 8 Id., 539, were decided. Indeed, it has been expressly held that the two sections are to receive the same construction. State v. Arnold, 12 Id., 479. And, as is held in all these cases, we cannot interfere with the discretion vested in the court below, unless it is clearly shown to have been improperly exercised.
And while indulging in these presumptions, it by no means follows that cases might not arise when we would feel called upon to interfere. But we certainly should be most reluctant to do so in a case of this character where the application is based upon the unsupported affidavit of the petitioner, however minutely he might state the facts forming the basis for his belief. One reason for this conclusion may be stated: The petition refers to several conversations or facts of which third persons were cognizant. If the alleged declarations were made, “ the affidavit could certainly have been supported ” by the testimony of the persons to whom they were made, or those hearing them (State of Iowa v. Mooney, 10 Iowa, 501); and the absence of such corroboration without excuse shown, is certainly to be taken very strongly against appellants. Under such circumstances we cannot say that the court erred in refusing the application, and the judgment below will therefore stand.
Affirmed.