90 Iowa 569 | Iowa | 1894
The indictment alleges that the crime charged was committed on the fifth day of September, 1892, in Harrison county, in this state, by the defendants, who then and there had sexual intercourse with each other. At that time the defendant Emerine Bussell was the wife of J ames Coulthard. He voluntarily appeared and testified before the grand jury, and
I. The defendants had not been held to await the action of the grand jury, andhadno opportunity to object to it until after the indictment had been found. Before pleading to it they moved to set it aside on two grounds, the substance of the first of which is that the grand jury by which the indictment was found was illegal, for the reason that two of its members were residents of the same township. The motion was overruled. As we understand the record, at the term of court at which the indictment was found, and after it was returned, the grand jury was discharged on motion of the county attorney, for the alleged reason that two of the grand jurors resided in the same civil township, “and did at the time the grand jury were drawn.” We do not think that action of the district court was such an adjudication of the legality of the grand jury as to affect the liability of the defendants under the indictment found, and that must be determined on the merits, without regard to the action of the court in discharging the jury. Grand jurors are drawn substantially as follows: On or before the first Monday of September of each year the county auditor apportions the number to be selected from each election precinct, the number amounting in the aggregate to seventy-five, and causes written notices of the apportionment to be delivered to one of the judges of election in each precinct. The judges thereupon select the required number of persons, and return their names to the county auditor with the election returns. Code, sections 234, 236-238. The returns thus made necessarily show the township in which each one of the seventy-five jurors resides. When a grand jury is
It is claimed that the provisions of the statute now under consideration are directory, and that the motion to set aside the indictment on the ground stated was properly overruled. But none of the cases cited arose under the statute of 1886, and the part of that statute quoted has not been held to be directory merely. The case of State v. Be Bord, 88 Iowa, 103, 55 N. W. Rep. 79, was decided since it was enacted, but construed other provisions of the law. In State v. Beckey, 79 Iowa, 368, 44 N. W. Rep. 679, it appeared that a grand jury had been drawn in manner as follows: The ballots containing the names returned from each of fifteen townships were separated and sealed in separate envelopes. Those were placed in a box, from which twelve envelopes, that being the required number of jurors, were drawn. The ballots in each envelope were then taken out, placed in a box, and one ballot drawn therefrom, and the person named on the ballot drawn was summoned as the juror from his township. It was held that, there was a substantial departure from the requirements of the statute, and that an indictment found by the grand jury so drawn should be set aside. It appears to us that the same conclusion must be reached in this case. It is the general rule that “negative terms in a statute show a legislative intent to make the provision imperative requiring a strict performance in respect to both time and manner.” .23 Am. and Eng. Encyclopedia of Law, 455, note 3; Sixth. St. Const., section 454; State v. Hilmantel, 21 Wis. 571; Bladen v. Philadelphia, 60 Pa. St. 464. The statute in question does not merely direct the manner of drawing jurors, but pro
II. The remaining ground of the motion to set aside the indictment is that John Coulthard, a brother of James, was a member of the grand jury, and took part in its proceedings. That alone would not have been a sufficient cause for which to challenge the juror. Code, section 4261. Nor does the statute make it a ground upon which the indictment may be set aside. Id., section 4337. The motion as to that ground was properly overruled.
III. James Coulthard, the husband of Mrs. Russell at the time the offense charged is said to have been committed, was permitted to testify on the trial as a witness against the defendants. It is insisted that his testimony was not competent, because she had ceased to be his 'wife, at the time it was given. The argument in support of that claim seems to be that, as section 4008 of the Code provides that “no prosecution for adultery can be commenced but on the complaint of the husband or wife,” the right to maintain the prosecution depends upon the continuance of the marriage relations; that the crime is against the injured party to that relation; and that public policy demands the discontinuance of the prosecution when that relation ends. It is only necessary that the prosecution be commenced by the husband or wife. After
IV. In view of the conclusions announced, it is unnecessary to consider other questions discussed by counsel. For the failure of the district court to set aside the indictment on the first ground of the motion which assailed it, the judgment is reversed.
