Busse v. Barr
Decision Date | 22 November 1906 |
Parties | BUSSE v. BARR, WARDEN. |
Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Linn County; Wm. G. Thompson, Judge.
Appeal by plaintiff from an order of Wm. G. Thompson, judge of the district court of Linn county, in a habeas corpus proceeding, dismissing the plaintiff's petition and remanding the plaintiff to the custody of the defendant, the warden of the state penitentiary at Anamosa. Affirmed.Gibson & Dawson, for appellant.
C. W. Mullan, Atty. Gen., for appellee.
The appellant, being in the custody of the defendant under sentence of execution, on conviction of the crime of murder in the first degree, sued out a writ of habeas corpus before the judge of the district court of the county in which the state penitentiary in which he is confined is located, asking discharge for reasons which will be considered in detail. After a trial on the merits, the district judge dismissed his petition, and remanded him to defendant's custody, to await execution, which, after two postponements, has been set by the Governor of the state to take place on the 12th day of December next. The sentence for capital punishment was imposed in due form by the district court of Bremer county, to which the prosecution against the plaintiff was removed on change of venue from Butler county, where this plaintiff was indicted at the October term, 1901, for the murder of his wife, having been bound over to await the action of the grand jury on a preliminary examination.
1. The grand jury of Butler county, duly impaneled, after the appellant was committed on preliminary examination, was composed of seven members. The appellant challenged one of the members of the grand jury for disqualification to act as a grand juror in the case against him, and this challenge was sustained and such grand juror ordered and directed not to act in said case, and he did not act as such grand juror therein. But the vacancy in the grand jury, occasioned by the challenge of this grand juror was not filled and the six grand jurors as to whom no objections were made, proceeded to act as a grand jury on the case of the appellant and returned into court the indictment on which he was subsequently tried. Appellant now contends that the vacancy should have been filled by the selection of another grand juror for appellant's case, under the provisions of Code, section 5246, as amended by the 27th Gen. Assem. p. 61, c. 114, § 2 (Code Supp. p. 551) as follows:
The contention of this appellant is that a grand jury composed of only six grand jurors, who were qualified to act upon his case, was not a lawful grand jury, and that the indictment returned by such six grand jurors was a nullity, and therefore the conviction of appellant on the charge in such indictment was also a nullity and furnishes no legal justification for his detention by the warden of the penitentiary on such conviction. A sufficient answer to this contention is that, although the omission to fill the vacancy in the grand jury for the consideration of appellant's case may have been an error in procedure, it was an error which was waived by the failure of the appellant to make any objection at the time to the submission of his case to a grand jury composed of only six members qualified to act, and by failing to make any objection to his being tried on the indictment as returned. State v. Wheeler (Iowa) 105 N. W. 374. In this case it was held that a conviction on an indictment found by not less than five grand jurors, when the panel of the grand jury consists of seven members (see Code, § 5274) is not reversible on that ground, although one of the seven members of the regular panel is disqualified to act in the finding of the particular indictment, and the place of such disqualified grand juror has not been filled as required by statute. It is contended, however, that the right to indictment by a lawful grand jury as a basis for further proceedings in a criminal prosecution is constitutional and cannot be waived. and that Code, § 5321, which denies to a defendant, who has been held to answer before the impaneling of the grand jury which returns the indictment against him, the right to move to set aside the indictment on the ground “that the grand jury were not selected, drawn, summoned or sworn as prescribed by law” (Code, § 5319) is unconstitutional. The provision of the Constitution (art. 1, § 11) is that no person shall be held to answer for a felony, unless on indictment by a grand jury, with certain exceptions uot here material, and, by an amendment to the Constitution adopted in 1884, it is provided that the grand jury may consist of any number of members, not less than five nor more than fifteen, as the General Assembly may by law provide. The appellant contends that, though the General Assembly might have provided for an indictment by a grand jury of not less than five members, yet, as in this case, the statute required seven members, an indictment by a less number was not valid, and that, therefore, to subject the appellant to trial on an indictment not found by a grand jury of seven qualified grand jurors was a denial to him of his constitutional rights. It is evident, however, that the objection to an indictment found by a grand jury of seven members duly constituted, one only of whom was disqualified for a particular case, so that the grand jury was, in fact, composed of at least five members who joined in finding the indictment, five grand jurors being authorized to find an indictment as provided by the statute above cited, was an objection which could be waived by the defendant, or could be denied to him by statute, without impairment of any constitutional provision. We...
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...In re Belt, 159 U.S. 95, 40 L.Ed. 88; Marrin v. U.S. 167 F. 951, 93 C.C.A. 351; James v. Bowen, 83 Conn. 702, 78 A. 420; Busse v. Barr, 132 Iowa 463, 109 N.W. 920; Bulliner v. People, 95 Ill. 394; Hunter State, 43 Ga. 483, 524; People v. McCoy, 71 Cal. 395, 12 P. 272; Commonwealth v. Clay, ......
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