State v. Belvel

Decision Date16 October 1893
Citation56 N.W. 545,89 Iowa 405
PartiesTHE STATE OF IOWA, Appellee, v. H. M. BELVEL, Appellant
CourtIowa Supreme Court

Appeal from Taylor District Court.--HON. H. M. TOWNER, Judge.

THE defendant was convicted of the crime of libel. From the judgment, which required him to pay a fine of five hundred dollars and costs, he appeals.

Affirmed.

John F Martin, Chas. Thomas, Mark Atkinson, Chas. Mackenzie, and Dale & Brown, for appellant.

John Y Stone, Attorney General, and Thos. A. Cheshire, for the State.

ROBINSON C. J. KINNE, J. (dissenting).

OPINION

ROBINSON, C. J.

The indictment upon which the defendant was convicted was presented by the grand jury of Taylor county on the fifth day of March, 1892. It charges that on or about the eighteenth day of February, 1892, in the county named, the defendant "unlawfully and maliciously, to injure the good name and character of G. L. Finn, and to expose him to public hatred and contempt, and deprive him of public confidence, and to bring him into public scandal and disgrace, did, on the said eighteenth day of February, 1892, write and publish, and cause to be written and published in said county, in the Southwest Democrat, a newspaper published in said county, a false, scandalous, malicious, and defamatory libel, in the form of a letter. * * *" The matter alleged to be libelous is set out at length, and the sense in which it was written and published is specified.

On the twenty-seventh day of April, 1892, the defendant filed a demurrer to the indictment, which was overruled. The defendant then petitioned for a change of the place of trial on the ground of excitement and prejudice on the part of the people of Taylor county. The petition was supported by affidavits, and was overruled. A motion for a continuance was made, based on the absence of certain witnesses. It was supported by affidavits, and was resisted by counter affidavits. A motion of the defendant to strike the counter affidavits from the files on the ground that they are not allowable, was overruled. Some of the persons whose affidavits were used were examined in open court, and the application for a continuance was overruled on the fifth day of May, 1892. Thereupon the defendant entered the plea of guilty, and judgment was rendered as has been stated. On the twenty-sixth day of the same month an appeal was taken to this court. On the eleventh day of April, 1893, the defendant filed in the district court a paper entitled a "motion and petition to vacate judgment," in which he asked that the judgment rendered be vacated, that he have leave to withdraw his plea of guilty, and that the indictment be quashed. The application was based upon the following grounds: First. An official bulletin of the superintendent of the federal census, issued on the twenty-first day of July, 1891, showed that the population of Taylor county was more than sixteen thousand inhabitants. Second. The law requires that in counties having more than sixteen thousand inhabitants the grand jury shall be composed of seven members, and, for the purpose of selecting them, that twelve jurors shall be drawn. Third. The grand jury which returned the indictment in question was composed of but five members, and for the purpose of selecting them but eight jurors were drawn. On the twenty-fifth day of April, 1893, the state and the defendant having been duly represented by attorneys, the motion was overruled. The petition was dismissed, and judgment was rendered against the defendant for costs. Two days later he took an appeal from that judgment. The two appeals are submitted together for the determination of this court.

I. Section 231 of the Code, as amended by chapter 42 of the Acts of the Twenty-first General Assembly, provides that in counties having more than sixteen thousand inhabitants, the grand jury shall be composed of seven members. Section 241 of the Code, as amended, provides that when the grand jury is to be composed of seven members, twelve jurors shall be drawn from which to select them. The population of Taylor county, as shown by the federal census of the year 1890, is sixteen thousand, three hundred and eighty-four, and it is not disputed that the grand jury which presented the indictment in question should have been composed of seven members, and that twelve jurors should have been drawn for it. See State v. Braskamp, 87 Iowa 588, 54 N.W. 532. The record submitted shows, that it was in fact composed of but five members, and that but eight jurors were drawn for it. The state contends, however, that, as the defendant failed to make the objections now presented before the judgment on his plea of guilty was rendered, they were waived, and that the first appeal deprived the district court of jurisdiction to determine the motion and petition on their merits. The defendant contends that the defect goes to the jurisdiction of the district court, and that want of jurisdiction can not be waived, but will be considered at any time when it comes to the knowledge of the court, even though not urged by either party.

That the general rule is as claimed by the defendant, has been settled by numerous decisions. City of Lansing v. Chicago, M. & St. P. R'y Co., 85 Iowa 215, 52 N.W. 195; Orcutt v. Hanson, 71 Iowa 514, 517, 32 N.W. 482; Gerro Gordo County v. Wright County, 59 Iowa 485, 13 N.W. 645; Groves v. Richmond, 53 Iowa 570, 5 N.W. 763; St. Joseph Manufacturing Company v. Harrington, 53 Iowa 380, 5 N.W. 568; District Township of Viola v. District Township of Audubon, 45 Iowa 104; Walters v. The Mollie Dozier, 24 Iowa 192, 199; Burlington University v. Executors of Stewart, 12 Iowa 442; Dicks v. Hatch, 10 Iowa 380, 384. In most of the cases cited it appeared that the trial court did not have jurisdiction of the subject-matter of the action, but that is not true in this case. The district court had jurisdiction of the offense charged in the indictment and of the defendant. The real question we are required to determine is, whether the fact that the grand jury was composed of but five members, and the further fact that but eight jurors were drawn for it, were defects so serious that they could not be waived.

Section 4260 of the Code authorizes a challenge to the panel, before indictment, when the jurors were not appointed, drawn, or summoned as prescribed by law. The defendant was not held to await the action of the grand jury by the order of any committing magistrate, and had no opportunity to object to the grand jury until after the indictment had been presented. But subdivision 5 of section 4337 of the Code provides for a motion to set aside an indictment, and requires that it be sustained when it appears "that the grand jury were not selected, drawn, summoned, impaneled, or sworn as prescribed by law." Section 4339 of the Code provides, that the ground stated shall not be allowed to a defendant who has been held to answer before indictment, thus in effect clearly providing for a waiver of the right of challenge when founded upon any of the defects contemplated by the subdivision quoted. State v. Gibbs, 39 Iowa 318, 319; State v. Hart, 29 Iowa 268, 269. Electors of the state only are qualified to act as jurors. Code, section 227.

But a person held to await the action of the grand jury waives his right to object to an indictment presented against him by a grand jury of which an alien was a member, by failing to challenge the alien before the jury was sworn. State v. Gibbs, 39 Iowa 318. In State v. Reid, 20 Iowa 413, 422, it appeared that the grand jury had submitted its final report, and been discharged. Afterwards, but during the same term of court, it was again summoned and impaneled, and it then found the indictment on which the defendant was convicted. It was objected that the court had no power thus to organize a grand jury. This court held that it had, and also that the objection was not taken in due time, because not made before a plea to the indictment was entered. It is clear, under the statute and the decisions, that the defendant waived his right to object to the panel because a sufficient number of jurors were not drawn for it.

It is more difficult to determine what effect should be given to the acts of a grand jury composed of but five jurors when seven are required by law. Section 11 of article 1 of the Constitution of this state provides, that no person shall be held to answer for any criminal offense higher than those in which the punishment does not exceed a fine of one hundred dollars or imprisonment for thirty days, "unless on presentment or indictment by a grand jury. * * *" Section 15 of article 5 of the Constitution adopted in the year 1884 is as follows: "The grand jury may consist of any number of members not less than five, nor more than fifteen, as the general assembly may by law provide, or the general assembly may provide for holding persons to answer for any criminal offense without the intervention of the grand jury." Acting under that section, the general assembly amended section 231 of the Code, and provided that in counties having more than sixteen thousand inhabitants "the grand jury shall be composed of seven members."

The defendant contends that this provision is mandatory, and that his right to have his case considered by a grand jury of seven members is guaranteed by the constitution. It is true that the right is guaranteed as claimed, but the obligation to provide a grand jury of seven members in certain cases is no greater than is that to furnish a trial jury of twelve. The constitution provides that the "right of trial by jury shall remain inviolate." Section 9, article 1. That means a jury of twelve persons and the general assembly can not require the parties to an action to...

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