Busse v. Barr

• Court: United States State Supreme Court of Iowa
• Writing for the Court: PER CURIAM.
• Citation: 132 Iowa 463,109 N.W. 920
• Parties: BUSSE v. BARR, WARDEN.
• Decision Date: 22 November 1906

132 Iowa 463
109 N.W. 920

BUSSE
v.
BARR, WARDEN.

Supreme Court of Iowa.

Nov. 22, 1906.

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.

[109 N.W. 920]

Gibson & Dawson, for appellant.

C. W. Mullan, Atty. Gen., for appellee.

PER CURIAM.

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

[109 N.W. 921]

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: “If a challenge to an individual grand juror be allowed, he shall not be present at or take any part in the consideration of the charge against the defendant. If a challenge to the panel is allowed, or if by reason of challenges to individual grand jurors being allowed, or if for any cause at any time, the grand jury is reduced to a less number than seven, a new grand jury shall be impaneled to inquire into the charge against the defendant in whose behalf the challenge to the panel has been allowed, or the panel of the jury so reduced below the number required by law shall be filled as the case may be. If a challenge is allowed to the panel the names of jurors required to impanel a new jury shall be drawn from the grand jury list. If such grand jury has been reduced to a less number than seven by reasons of challenges to individual jurors being allowed, or from any other cause, the additional jurors required to fill the panel shall be summoned, first, from such of the twelve jurors originally summoned which were not drawn on the grand jury as first impanelled, or excused, and if they are exhausted, the additional number required shall be drawn from the grand jury list and the court shall, when necessary, issue a venire to secure attendance of such additional jurors. The persons so served shall serve only in the case, or cases, in which, by reason of challenges, or other causes, the regular panel is set aside or is insufficient in number to find an indictment.”

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...