State v. Beckey

• Citation: 79 Iowa 368,44 N.W. 679
• Parties: STATE v. BECKEY.
• Decision Date: 06 February 1890
• Court: Iowa Supreme Court

79 Iowa 368

44 N.W. 679

STATE

v.BECKEY.

Supreme Court of Iowa.

Feb. 6, 1890.

Appeal from district court, Muscatine county; ANDREW HOWAT, Judge.

From a judgment of the district court sustaining a motion to quash an indictment for a saloon nuisance, the plaintiff appealed.A. J. Lauder and John Y. Stone, Atty. Gen., for the State.

GRANGER, J.

1. At the drawing of the grand jury that found and returned the indictment in this case, there were placed in the box provided for that purpose 96, instead of 75, names, as provided by the letter of the statute, and that fact is made a ground of the motion to quash; and, as the judgment of the district court must be affirmed on another ground of the motion, and as the court might not be agreed on this question, we deem it inadvisable to consider it at the present time, and dismiss the point, with the suggestion that a substantial compliance with the provisions of the law is required in such matters, and the uncertainty as to what may be regarded as a substantial deviation makes it safest and best, in practice, to adhere as far as may be to the literal provision of the statute.

2. The county of Muscatine has 15 townships, and under the present law a grand jury for that county consists of 7 members. The Code, after providing for 75 names as a number from which the grand jurors are to be drawn, provides that (section 240) “at least 20 days prior to the first day of any term at which a jury is to be selected, the auditor or his deputy must write out the names on the lists aforesaid, * * * on separate ballots, and the clerk of the district court, or his deputy, and sheriff, [or his deputy,] having compared said ballots with the lists, and corrected the same, if necessary, shall place the ballots in a box provided for that purpose.” The next section provides that the ballots shall be thoroughlymixed, and that the clerk shall draw the requisite number of jurors, which must be 12 in the county of Muscatine, from which number, at each term, 7 are to be selected to constitute a panel. It is also provided that, in drawing the 12 jurors to be summoned, not more than 1 shall be drawn from the same township where the number of townships in the county is equal to or greater than the number of jurors to be drawn, and where more than 1 are drawn from the same township the officers drawing must reject the superfluous names. The names from which the jurors are to be drawn are furnished to the county auditor by the judges of the election in each election precinct, after notice from him of the number required therefrom. It will thus be seen that the law provides that the names from which jurors are to be drawn are to be furnished to the auditor by the judges of election. From the lists of names thus furnished, the auditor is to write the names on separate ballots, and the clerk and sheriff are to compare the ballots with the lists returned to the auditor, and correct errors. The ballots are then to be placed in a box, thoroughly mixed, and the names of the jurors drawn therefrom. The officers, in drawing the grand jurors from which the panel was made that returned the indictment, adopted the following plan: The ballots containing the names returned from each township were separated, and sealed in separate envelopes. These envelopes, 15 in number, were placed in a box, and the clerk drew therefrom 12 envelopes, which, of course, contained the names returned from 12 townships; and the number of townships thus drawn corresponded with the number of jurors to be drawn. The ballots in each envelope were then taken out, placed in a box, and 1 ballot drawn therefrom, and the person named thereon was the juror from that township; and in that manner a juror was drawn from each of the 12 townships represented by the envelopes first drawn. This departure from the method prescribed by the Code for drawing the grand jury is made a ground in the motion for quashing the indictment.

It has been held in this state that the provisions of the law in relation to the mode of obtaining jurors is directory. State v. Carney, 20 Iowa, 82;State v. Gillick, 7 Iowa, 287. It is provided by statute that, if the appeal is taken by the defendant from a judgment against him, the supreme court must examine the record, and, without regard to technical errors or defects which do not affect the substantial rights of the parties, render such judgment on the record as the law demands. Code, § 4538. Of course, the validity of the indictment must be determined as if the question was presented on the defendant's appeal. In view of such statute, and guided by the rule that the statute providing a method of obtaining a jury is directory, this court has held that an indictment returned by a grand jury drawn from a box containing but 73 instead of 75 names is valid. State v. Carney, supra. It has also sustained an indictment where the clerk, in preparing for the drawing of the grand jury, placed the ballots, unfolded, in an open hat, instead of in a box, as...