Crosby v. Clock

• Decision Date: 24 June 1929
• Docket Number: 39915
• Citation: 225 N.W. 954,208 Iowa 472
• Parties: FRANK CROSBY, Petitioner, v. SHERWOOD A. CLOCK, Judge, Respondent
• Court: Iowa Supreme Court

225 N.W. 954

208 Iowa 472

FRANK CROSBY, Petitioner, v. SHERWOOD A. CLOCK, Judge, Respondent

No. 39915

Supreme Court of Iowa, Des Moines

June 24, 1929

Appeal from Webster District Court.--SHERWOOD A. CLOCK, Judge.

This is a certiorari proceeding brought in this court by Frank Crosby, to review an order by Sherwood A. Clock, judge of the district court, sitting in Webster County, Iowa, in which said order the said Crosby was committed for contempt, upon the refusal of the said Crosby to answer certain questions propounded to him as a witness before the grand jury of Webster County and repeated to him before the court.--Order annulled. Petitioner discharged.

Order annulled. Petitioner discharged.

Thomas & Loth, for petitioner.

D. M Kelleher and John E. Mulroney, for respondent.

GRIMM J. ALBERT, C. J., and EVANS, KINDIG, and WAGNER, JJ., concur.

OPINION

GRIMM, J.

That portion of the return by the respondent to the writ in reference to the presentation of the matter to the district court is as follows:

"To the Honorable District Court in and for Webster County Iowa:

"In the examination on April 10, 1929, of Frank Crosby, who was before the March grand jury of Webster County, Iowa, Mr Crosby being first duly sworn by the foreman of said grand jury, the following questions were asked of the witness Crosby:

"Q. Did anybody attempt to pay you for your services? A. I refuse to answer that question on the grounds that it may inscriminate me."

"Q Inscriminate you? Where did you get that word? A. I refuse to answer."

"Q. Where did you pick up that word? A. I refuse to answer."

"Q. Did you have any understanding that you were to be paid for your services in connection with your election work?"

And the witness made the following reply: "I refuse to answer that question."

"Q. Is it not true that you were promised money or other valuable thing for your services in working for certain candidates at the city election which was held in March, 1929?"

And the witness made the following reply: "I refuse to answer that question."

"Q. Did you not, after the election, receive the money or valuable thing that you were promised for your services in working at the city election in March, 1929? A. I also refuse to answer that question."

The return of the respondent shows the following court entry:

"In the District Court of Iowa in and for Webster County.

"In the Matter of the March Grand Jury.

"Order.

"Be it remembered that, on the 11th day of April, A. D. 1929, the grand jury of Webster County, Iowa, duly reported in open court through Hal C. Fuller, foreman of said grand jury, as follows:

"Said Hal C. Fuller, foreman, in open court on this 11th day of April, A. D. 1929, one of the days of the regular March, 1929, term of the district court of Webster County, Iowa, stated to the court that Frank Crosby, a witness duly sworn by the foreman of said grand jury, was propounded the following questions, and which questions he refused to answer (he, the said Frank Crosby, making the answers and only the answers to said questions now set forth, as follows): [Here follow the same questions and answers as appear in the presentation made by the foreman to the court.] Said witness, Frank Crosby, being present at the time of said report when said statement by the foreman of said grand jury reported same, was thereupon asked by the court (Honorable Sherwood A. Clock, presiding judge) if he persisted in his refusal to answer said questions, said court ruling and stating that said witness was bound to answer said questions and each of them. The witness, in answer to the interrogation of the court, stated that he did persist in his refusal. Thereupon the court made and hereby enters and renders the following ruling and decision and sentence, to wit:

"It is hereby ordered and adjudged that the said Frank Crosby, now present in open court, be and he is hereby ordered by the court and sentenced to be confined in the Webster County jail until he makes answer to said questions propounded to him before the said grand jury.

"And it is further ordered that the clerk of the district court of Webster County, Iowa, issue a mittimus in accordance with this order.

"[Signed] Sherwood A. Clock,

"Judge of the District Court of

Webster County, Iowa."

The mittimus is in substantially the same language.

The certificate of Judge Clock to the return to the writ of certiorari alleges the return to contain a full, true, correct, and complete transcript of the records and proceedings, as well as the facts, in the case of "In the Matter of the March Grand Jury," "Investigation of Municipal Election." The words "Investigation of Municipal Election" appear in said certificate for the first time.

The return to the writ contains several pages of other matter, alleging, among other things, and in substance, that, at the time the questions were propounded to the grand jury, the grand jury was engaged in making an investigation in reference to a primary election held on the 9th day of March. 1929, for the nomination of mayor and councilmen to be elected in the city of Fort Dodge, in Webster County, Iowa, and in relation to a city election held on the 25th day of March, 1929, to vote upon candidates nominated at said primary election for the office of mayor and councilmen, and that the said Crosby, prior to the time the questions were propounded to him, was advised in reference to the law of Iowa on the subject of immunity to a witness testifying under such circumstances. All of these matters are not of record, and appear for the first time in the return. A motion to strike all these allegations was filed by the petitioner, and the motion has been submitted with the cause in this court.

This procedure is brought under Section 13711 of the Code of 1927, reading as follows:

"When a witness under examination before the grand jury refuses to testify or to answer a question put to him, it shall proceed with the witness into open court, and the foreman shall then distinctly state to the court the question and the refusal of the witness, and if upon hearing the witness the court shall decide that he is bound to testify or answer the question propounded, he shall inquire of the witness if he persists in his refusal, and, if he does, shall proceed with him as in cases of similar refusal in open court."

Section 11267, Code of 1927, is as follows:

"When the matter sought to be elicited would tend to render a witness criminally liable, or to expose him to public ignominy, he is not compelled to answer, except as otherwise provided."

Certain exceptions are provided in Section 11268, Code of 1927, as follows:

"In the following cases no witness shall be excused from giving testimony, or from producing any evidence, upon the ground that his testimony or such evidence would tend to render him criminally liable or expose him to public ignominy. * * *

"5. In prosecutions for the violation of the statutes relating to elections."

Section 11269, Code of 1927, is as follows:

"No person compelled under the preceding section to testify or produce evidence tending to incriminate him or to expose him to public ignominy shall be prosecuted for any crime which such testimony or evidence tends to prove or to which the same relates. This section shall not exempt any person from prosecution for perjury."

It appears from the record that the city of Fort Dodge is a city under the commission form of government. Chapter 326 of the Code of 1927 relates to the government of cities by commission, and Section 6515 of the said Code provides a punishment for entering into any agreement to perform any services in the interest of any candidate for any office provided in the chapter, in consideration of any money or other valuable thing for such services performed in the interest of any candidate. Section 6516 provides punishment for offering to give a bribe, either in money or other consideration, to any elector for the purpose of influencing his vote at any election provided in said chapter; and the section also provides a punishment for receiving or accepting a bribe or other consideration in connection with any election provided for in said Chapter 326.

Chapter 605 of the Code of 1927 pertains to bribery and corruption in elections. Section 13263, in said Chapter 605, provides for punishment for offering or giving a bribe to any elector for the purpose of influencing his vote at any election authorized by law, and also provides a punishment for the receipt by any elector of any bribe. Section 13264, in said Chapter 605, provides a punishment for entering into any agreement for the payment of money or other valuable thing in consideration of refraining from voting, or for the performance of any service or labor on election day, in the interest of any candidate for office or in the interest of any measure or political party. Section 13265 provides that:

"Any person who shall, in consideration of any sum of money or other valuable thing, agree to refrain from voting at any public election, or to induce or attempt to induce others to do so, or agree to perform on election day any service in the interest of any candidate, party, or measure * * * or who shall accept...