Maley v. District Court of Woodbury County

• Decision Date: 05 May 1936
• Docket Number: 43411.
• Citation: 266 N.W. 815,221 Iowa 732
• Parties: MALEY (TAGGERT et al., Interveners) v. DISTRICT COURT OF WOODBURY COUNTY et al.
• Court: Iowa Supreme Court

266 N.W. 815

221 Iowa 732

MALEY (TAGGERT et al., Interveners) v. DISTRICT COURT OF WOODBURY COUNTY et al.

No. 43411.

Supreme Court of Iowa.

May 5, 1936

Certiorari to District Court, Woodbury County; Earl Peters, Judge.

Original action in certiorari in this court to review the action of the respondent in ruling on a motion to quash certain indictments returned by the grand jury of Woodbury county.

Writ sustained.

L. H Salinger, of Carroll, and William P. Welch, of Logan, for petitioner.

George Gorder, Forsling & Cover, Hays, Baron & Baron, R. C Prichard, and William B. Egan, all of Sioux City, for interveners.

H. M Havner, of Des Moines, and M. E. Rawlings, of Sioux City, for respondents.

PER CURIAM.

In July, 1935, the grand jury of Woodbury county returned into the district court an alleged indictment against the petitioner herein, and some twenty other named defendants. The petitioner Maley, before entering any plea to the indictment and under the provisions of Code, § 13781, moved to set the indictment aside on numerous grounds. The court overruled this motion, and it is to review this ruling of the court that the writ herein was granted.

We are not passing on all the grounds included in this motion, but devote our attention to two grounds which we think are sufficiently controlling to warrant the sustaining of this writ. These two grounds will be referred to in detail hereafter.

It appears that in the early part of the year 1935 an investigation by the Woodbury county grand jury was precipitated by reason of an article appearing in the Cedar Rapids Gazette. This investigation involved a charge of certain racketeering within the state of Iowa. As a part of the history of this investigation, one Duckworth (who was then county attorney of Woodbury county) was charged with malfeasance in office, which resulted in his resigning his office on the 20th day of May, 1935; and one M. E. Rawlings was appointed county attorney in his place and stead on the 21st of May, 1935. A few days following his appointment Rawlings appeared before the district court of Woodbury county and satisfied the court that he was disqualified to act as county attorney in this investigation, whereupon the court, on May 27th, appointed H. M. Havner as special prosecutor and assistant county attorney, and authorized the said Havner " to appear before the grand jury for the May, 1935, term of Woodbury County, Iowa, the same as could the county attorney himself, and to examine witnesses before said grand jury the same as could the county attorney himself * * * with reference to conspiracy, fraud, graft and corruption in public office."

In pursuance of said appointment and order of the court, Havner proceeded with this investigation before the grand jury. The result of the work of the grand jury was the return of the indictment above referred to, and several other indictments of similar character.

The grand jury system is of ancient origin and dates back to the early history of England. It originally was not only an inquisitory and accusatory body, but also a trial body in all criminal matters. Later these rights were divided and the rights of the grand jury were limited to those of an accusatory body, and the trial of the criminal was transferred to what is known as the petit jury. The grand jury served in England as a barrier between the King and the rights of the subject, and also assured the subject security against oppression or unfounded prosecution. It came to us as a part of the common law, and is designed as a means not only of bringing to trial those accused of offenses upon just grounds, but also as a means of protecting the citizen against unfounded accusations, whether they come from the government or are prompted by partisan passion or private enmity. 12 R.C.L. p. 1014; 28 C.J. p. 763. It is an adjunct of the court, yet within its field it operates wholly independently of the court. To carry out its proper function numerous statutory regulations have been made. It not only has the duty to inquire into charges and make return of indictments where it is satisfied that a crime has been committed, but it has an equal duty to protect the citizen against an unfounded accusation and to prevent anyone from satisfying his malice, ill will, or vindictiveness against the alleged accused. Its work is to be carried on secretly to accomplish its ends. Originally the prosecuting attorney was not permitted to appear before the grand jury. Later, as under our statute (Code 1935, § 13706), the prosecuting attorney was permitted to appear before the grand jury, to aid in its work, by examining witnesses and advising as to the law governing the questions involved. To the end that this body may properly function, numerous statutes have been passed in this and other states, among others a statute of this state which will be hereinafter referred to. It is as much the duty of the grand jury to return indictments, when they should properly be found, as to refuse indictment where the charges are unfounded and grow out of spite, malice, or ill will. Another idea, that is prevalent through all the cases involving the questions herein involved, is that the grand jury, in its investigation and conclusion, is to act alone on the evidence it has before it, and is not to be subject to outside influences.

In reaching the conclusion we have reached in this case, we have taken the above matters into consideration.

The first point to which we give our attention is the claim that during this investigation Havner, by his conduct, disqualified himself to act as assistant county attorney, and that from that time on he had no right to appear before the grand jury, under section 13781 of the Code, which provides for a motion to set aside an indictment.

" * * * and must be sustained: * * *

6. When any person other than the grand jurors was present before the grand jury during the investigation of the charge, except as required or permitted by law."

The basis of this charge lies in the following facts shown by the record:

After Havner had spent some ten days or two weeks in this investigation before the grand jury (he having agreed with the board of supervisors that he would not charge for his services), he determined that he could not afford to spend the time and money necessary to complete this investigation (which, by the way, lasted more than three months). He thereupon called on the editor of the Cedar Rapids Gazette and advised him what the situation was, and, as a result of that conversation, this editor agreed with him that, if no one else would pay Havner for his services, he (the editor) would see that he was fairly treated. He then sent Havner some $300, and at a later date he gave him $400. Respondents conceded on submission of the cause in this court that Havner received the above amounts.

Petitioner, so far as this phase of the question is concerned, does not question the proper appointment of Havner as assistant county attorney, nor does he complain of his conduct until the time of the agreement above referred to; but he claims that by entering into this agreement Havner disqualified himself to take any further part in the investigation, and, having so disqualified himself, he fell under the ban of subdivision 6, § 13781, Code, as above set out.

Section 5180-a1 of the Code is the section which authorizes the appointment of " an attorney to act as county attorney." This section also provides that " he shall have all the authority and be subject to all the responsibilities herein conferred upon county attorneys."

Section 5180-a3 provides: " No county attorney shall accept any fee or reward from or on behalf of anyone for services rendered in any prosecution or the conduct of any official business."

It will be noted, under these sections, that the assistant county attorney is subject to all the responsibilities of the county attorney, and that the county attorney is prohibited from accepting " any fee or reward," etc.

The question of the wisdom of these sections of the statute, and the other sections governing grand juries, their procedure etc., is not a justiciable issue. Whether they are wise or unwise is wholly a question for the Legislature. It is our opinion that, under these provisions of the...