Foreman v. Hunter
| Decision Date | 19 October 1882 |
| Citation | 13 N.W. 659,59 Iowa 550 |
| Parties | FOREMAN v. HUNTER, SHERIFF |
| Court | Iowa Supreme Court |
Appeal from Jasper District Court.
THE plaintiff filed a petition praying for his discharge, upon a writ of habeas corpus, from the Jasper county jail. The writ of habeas corpus was duly issued and upon the hearing the court refused to discharge the petitioner. The plaintiff appeals.
AFFIRMED.
Winslow and Wilson, for appellant.
Smith McPherson, Attorney-general, for appellee.
The evidence upon which the case was heard is not before us.
The petition in substance alleges that the imprisonment and restraint of the plaintiff are by virtue of a mittimus issued by one J. L. Johnson, a justice of the peace in and for Jasper county, upon a judgment of conviction upon seventeen counts in an information charging the petitioner with the sale of intoxicating liquors; that the judgments entered upon every count of the information are void, and, the imprisonment is illegal, for the following, among other reasons:
First. Two of the jury which tried the cause were not citizens of the United States, which fact was not known to petitioner until after the verdict was rendered.
Second. The said judgments and each of them, except the one entered upon the fifth count in the information, are wholly void because the matters and things alleged in said counts do not constitute any violation of any statute of the State.
Third. That a witness was hired and paid the sum of twenty-five dollars to testify in said cause against petitioner, which sum was made up by subscription or donation, and that among the said contributors was the said J. L. Johnson, who was the court that tried the case. The petitioner further alleges that the justice fixed the appeal bond at thirty-five hundred dollars, which is excessive and oppressive, and in violation of the Constitution of the State.
The court upon the hearing of the cause found that the allegations in the plaintiff's petition are true, except in relation to the information upon which petitioner was tried, respecting which the facts are as follows: "Each of the several counts, except the fifth, was in the following words, that is to say:
"That the fifth count charged the sale of whisky, and defendant has been imprisoned, as he alleges, more than the time fixed as the penalty for said offense charged." Upon these facts the court held as a matter of law that the judgments upon the several counts are not void, but that the bail fixed upon appeal is excessive. The court thereupon dismissed the writ of habeas corpus and reduced the bail, upon appeal, to two hundred dollars.
I. It is insisted that the judgments are void because two of the jurors trying the cause were aliens. It may be conceded that it is the duty of the State, as claimed by appellant, to put legal jurors in the box to try a cause. A judgment rendered by a disqualified jury is erroneous, but not void. It might be reversed upon appeal, but it cannot be disregarded as a nullity. In Cooley's Constitutional Limitations, second edition, page 410, it is said: "Even the denial of jury trial, in cases where that privilege is reserved by the Constitution, does not render the proceedings void, but only makes them liable to be reversed for the...
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