State v. Asbury

• Decision Date: 24 November 1915
• Docket Number: 29805
• Citation: State v. Asbury, 172 Iowa 606, 154 N.W. 915 (Iowa 1915)
• Parties: STATE OF IOWA, Appellee, v. JOHN ASBURY, Appellant
• Court: Iowa Supreme Court

154 N.W. 915

172 Iowa 606

STATE OF IOWA, Appellee, v. JOHN ASBURY, Appellant

No. 29805

Supreme Court of Iowa, Des Moines

November 24, 1915

Appeal from Appanoose District Court.--HON. FRANCIS M. HUNTER Judge.

DEFENDANT was convicted of rape, and appeals.--Reversed and Remanded.

Reversed and Remanded.

J. M Wilson, for appellant.

George Cosson, Attorney General, and Wiley S. Rankin, Special Counsel, for appellee.

SALINGER J. DEEMER, C. J., LADD, WEAVER, EVANS and GAYNOR, JJ., concur.

OPINION

SALINGER, J.

I.

The court, having discovered that an indictment returned against defendant charged no crime, set it aside on its own motion and ordered a resubmission. It is contended that this action is unauthorized by statute, and therefore erroneous. It seems true the action complained of is not authorized by statute.

Sec. 5319, Code, provides that, if motion to set aside an indictment is made before plea is entered, the indictment must be set aside if certain objections are made to appear. The objections enumerated do not include that the indictment charges no crime--a point which can, of course, be raised by demurrer. Under Sec. 5321, Code, one ground for setting aside the indictment found in Sec. 5319 is not available to a defendant who has been held to answer before indictment. By Sec. 5331, Code, it is provided that, if a demurrer to the indictment be sustained, among other things, for failure of the indictment to charge a crime, the defendant must be discharged, unless the court is of opinion, on good cause shown, that the objection can be remedied or avoided in another indictment, in which case the court may order the cause to be resubmitted to the same or another grand jury.

None of these authorize the setting aside of indictments and resubmission, upon the motion of the court, and on the ground that the indictment charges no crime. And it seems true, also, that none of our cases decide the precise point now under discussion. We think that, notwithstanding State v. Kimble is cited in State v. Hanlin, 134 Iowa 493, at 496, 110 N.W. 162, for the proposition that the trial court may order resubmission where the indictment is clearly defective, the Kimble case does not conclude that point. In it, "The alleged defect was pointed out by an objection to evidence", 104 Iowa 21, 22, and therefore it does not decide whether the court may resubmit sua sponte. The Hanlin case itself clearly does not conclude the question now under consideration, because all it holds is that a defendant who, before trial, successfully resists a motion by the state to set aside the indictment and to resubmit because of alleged defects therein, cannot, upon conviction, rely on a denial of the motion as ground for reversal. That is, he is estopped by conduct--cannot say on the motion to resubmit that the indictment does not require it, and afterwards say it was error for the court to agree with him and to refuse resubmission. The case is not applicable: first, because no resubmission was had, and consequently the validity of resubmission was not involved; second, its validity was not passed upon; and, third, the case went off on a clear question of estoppel. It will be seen, then, that the statute law and our cases leave open whether the court may, strictly on its own motion, resubmit upon itself finding the indictment defective. We treat the question as one of first impression. It will be noticed that, while our statutes and our cases do not give such authority, neither do they exclude it. That the court may, or should, upon a prescribed application and for prescribed grounds, set aside the indictment and resubmit, is not necessarily conclusive for the assertion that it may not resubmit under any other circumstances. We take it that the courts are entrusted with inherent power to avoid a turning of the administration of justice into a travesty, inherently empowered to protect themselves against what will interfere with their effective action. If witnesses or others behave themselves during the trial in a contemptuous manner, calculated to interfere with orderly procedure and righteous decision, the court could protect itself against this if there were no statute authority to do so, or even if the statute prescribed dealing with contempts and omitted one like the act of such witness. Unless such grant of power were exclusive in terms, the right to use the power in cases not enumerated would remain, if exercised in such manner as to effectuate the general purpose--to have orderly administration of justice. We think the dictum in the Kimble case should be declared to be the law. It is therein said: "The method of invoking the action of the court in such a case is not pointed out, and we are of the opinion that the court may act on its own motion without a request from either party. Certainly the court would not be required to permit a useless trial to be continued merely because neither party objected to it." If the courts may, without statute grant, summarily deal with one who threatens with violence to prevent the jury from reaching a verdict, they may act when some other cause makes it certain that, if the trial proceed, the verdict will be a nullity. If there be inherent power to prevent what interferes with the free arriving at a verdict, or to prevent the doing of acts that may unduly influence the verdict and make it subject to be avoided afterwards, there should be power in the court to interfere when it learns that, though the trial proceed to its end, there can never be what the law will regard as a verdict. If without statute the court may prevent a juror from being bribed or coerced, it may take whatever steps are necessary to avoid making the verdict of all the jurors a piece of waste paper. The fact that the legislature did not, in terms, include power to avoid one particular miscarriage of justice in statutes defining when indictments should or must be set aside should not be taken to deny the power to do what was done here. That statutes require, for instance, that if the indictment is not endorsed "a true bill", the court must, on motion, set aside the indictment, does not, in the least, establish that the court may not, without any motion, set aside an indictment where failing so to act would lead to a trial foredoomed to be abortive.

II. Claim was made that witness Maggie McWilliams was not before the grand jury that found the indictment, and should not have been allowed to testify. She was before one which found an earlier indictment, which was set aside with an order of resubmission. The minutes to said first indictment were attached to the one upon which trial was had. The dispute is over whether witness was before the second grand jury. It is an immaterial dispute; because Code Sec. 5278 provides that, on resubmission to the same or any other grand jury, "it shall be unnecessary to summon the witnesses again . . . but the minutes . . . returned with the defective indictment . . . shall be detached and returned to the grand jury, and thereupon, without more, such grand jury may find a bill and attach said minutes . . . thereto, and return said indictment therewith into court in the usual manner, and may, in either case, take additional testimony."

III. The testimony proposed by Doctors Bamford, Bowen and Tillmont was rightly excluded. Its effect was to have the witnesses say that, in their opinion, rape could not be committed upon an adult female under the circumstances disclosed by the record. This, it seems to us, is an invasion of the province of the jury. See Kesselring v. Hummer, 130 Iowa 145, 106 N.W. 501; State v. Peterson, 110 Iowa 647, 651, 82 N.W. 329.

IV. The witness Kincade testified to nothing except that she knew defendant, was acquainted with his reputation for moral character and virtue; that same was good, and witness never heard it questioned until this matter came up.

Over apt objection, it was permitted to ask this witness, on cross-examination, this: The witness said, without objection, that she had known defendant for twelve years, and that he had made her home his staying place. Upon this, without more, the cross-examiner asked:

Q. "Up until the time he broke jail here in Centerville, didn't he?" A. "No, sir." Q. "Now, two days following the time he broke jail in Centerville, you furnished him with food, didn't you?" A. "No, sir, I didn't. I ain't seen him until yesterday."

The court charged upon the effect of...