61 Iowa 330 | Iowa | 1883
— I. The prisoner was held to answer before the grand jury for the crime for which he was ‘indicted, and, in the exercise of the right conferred by statute, challenged a grand juror, on the ground that he had formed and expressed an opinion of defendant’s guilt. See Code, § § 4258 and 4261. The challenge was sustained, and the court, under § 4264, directed that the juror objected to should not be present at or take any part in the consideration of the charge against the prisoner. This direction was disobeyed, and the
II. Code, § 4261, conferring upon the prisoner the right of challenging grand jurors on the ground of opinions, formed and expressed, of his guilt, does not prescribe the time within which the right shall be exercised. Nor does it prescribe that, if the right be exercised, and one or more of the jurors be challenged, further challenges shall not be made, when ground .therefor arises after the first challenge. In the absence of any statute so providing, the prisoner ought to be permitted to exercise the right to challenge the jurors at any time before they consider the case, upon information gained that they are lawfully subject to challenge on account of matters arising after a prior challenge had been made. A different rule would defeat the very purpose of the statute, namely, to secure a fair and unprejudiced grand jury, t© whom the charge shall be submitted. In the case before us, after the first indictment was set aside, the rights of the prisoner were no other or different from what they were when the first challenge was made. He had a right to an unprejudiced grand jury. The proceedings resulting in the first indictment stood for nothing. The prisoner should have been permitted to fully exercise his right to challenge the jurors. There was ground for believing, nay, for knowing, that the
III. It is insisted that, as the courts may resubmit the cause to the same grand jury, under the provisions of Chap. 130, Sec. 5, Acts of the Eighteenth General Assembly, (Miller’s Code, p. 1008, and McClain’s Statutes, p. 1067,) this provision would be defeated if the prisoner may challenge the grand jurors on the ground of knowledge derived, and an opinion expressed, in proceedings resulting in a prior indictment. But this provision must be construed in harmony with other statutes, and it must be understood as directing that a charge may be resubmitted to a grand jury, to be examined under the rules elsewhere prescribed. • In this view,' the right of challenge is not abridged.
IV. The State v. Fowler, 52 Iowa, 103, is cited by the
The judgment of the district court is reversed. But the defendant will remain in custody to await the action of the grand jury, and the cause will be remanded to the district Court for an order resubmitting the charge to the grand jury.
Reversed.