State v. Bige
| Decision Date | 03 April 1923 |
| Docket Number | 34923 |
| Parties | STATE OF IOWA, Appellee, v. HERBERT BIGE, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED JUNE 22, 1923.
Appeal from Wright District Court.--G. D. THOMPSON, Judge.
THE defendant was convicted of the crime of entering a store building at Goldfield, Iowa. Judgment was entered, imposing a fine of $ 100 and that the defendant be confined in the county jail for 10 months. Defendant appeals.
Affirmed.
F. J Lund and J. W. Henneberry, for appellant.
Ben J Gibson, Attorney-general, Maxwell A. O'Brien, Assistant Attorney-general, and J. A. Rogers, County Attorney, for appellee.
1. The indictment upon which defendant was tried was returned April 18, 1922. It was against this defendant alone. It charges, in substance, that the defendant, about October 21, 1920, did, in the nighttime of said day, break and enter a certain store building in Goldfield, of said county, the said store building being then and there the property of Charleson & Holt, in which building goods, wares, and merchandise were kept for sale, use, and deposit, etc. At the January, 1921, term, and on February 7, 1921, the grand jury returned an indictment against this defendant and two others, charging them with the same crime, growing out of the same transaction. To that indictment defendant entered a plea of not guilty. At the April, 1921, term of court, the case was continued, on application of the State, and, as the record shows, with the consent of the defendant. At the October, 1921, term, the court was of opinion that the indictment against defendant could not then be tried, and at the request of the county attorney, and with the consent of the attorney for the defendant, stated that the case would be continued, for want of time to try the case at that term. The court stated at that time that he would make such a memorandum on his court calendar; but, through oversight, this entry was not made. As we understand the record, this entry was subsequently made, nunc pro tunc. On December 7, 1921, the county attorney filed a motion for continuance, supported by affidavit, asking that the cause be continued until the next term of court, on account of the absence of a material witness for the State, who had been a witness before the grand jury. The defendant filed objections to the motion for continuance, but the motion was sustained. Thereafter, and on February 13, 1922, the defendant filed a motion to dismiss the indictment, on the ground that more than two terms had elapsed after the indictment, and that the case had not been brought to trial, and that he had been denied a speedy trial. At the same time, the defendant also filed objections, exceptions, and challenges to the jury list, jury panel, and jurors, setting out numerous grounds, the substance of which is that the jury list was not prepared, certified, and selected as required by law. The next day, the State, conceding that the grand jury had not been properly drawn, moved that the first indictment be dismissed or set aside, and that the court take such other action as provided by law and as to the court might seem proper. The motion was sustained, and the court ordered the case resubmitted to another grand jury at the April, 1922, term of court, and ordered that the defendant be required to give bail, and ordered that the board of supervisors select new lists of jurors, both petit and grand and talesmen, to serve for the year 1922, as provided by Sections 337-a, 337-b, 337-c, and 337-d, Code Supplement, 1913. This was done, and we think legally. At the April, 1922, term, and prior to the impaneling of the grand jury for said term, defendant appeared, and filed written exceptions and objections to the panel of the grand jury and to the individual members thereof, on numerous grounds, among them that there was no authority of law for the order entered by the court at the February term, ordering a new grand jury; that defendant was indicted by a former grand jury, to which no objection was made; and that an indictment by the second grand jury would be invalid and void. Some of the other grounds are mere conclusions that the action was invalid, without giving any reason. Others of the objections raised questions of fact, upon which evidence was taken, and the objections by defendant to the new panel and the members thereof were overruled.
It seems to us that, under the circumstances, we ought not to take up much time with this matter. A dismissal of the first indictment, had it been granted, as requested by the defendant, would not be a bar to a second indictment, as claimed by defendant, if the second was returned within the statutory period of limitations. While the action of the trial court in resubmitting the case to the grand jury may not have been quite equivalent to a dismissal, in that defendant was held to bail, still that question was not tested out in any way, so far as the record shows, and we do not understand appellant to complain of that feature. The court did sustain defendant's contention that the grand jury had been improperly drawn, and set it aside. This was in accordance with the motion of the defendant. The defendant had not been placed in jeopardy by the mere returning of the indictment, and we think that the defendant is not now in a position to complain because the court complied with his motion and held that the first grand jury had not been properly drawn. The statute provides that the indictment may be set aside when the grand jury were not selected, drawn, etc., as prescribed by law. Code Section 5319. Code Section 5324 is to the effect that, where the motion is sustained and the indictment set aside, the court must order the defendant discharged, unless the court direct that the case be resubmitted to the same or another grand jury. An order setting aside the indictment is no bar to a future prosecution for the same offense. Code Section 5326.
The appellant does not complain so much of this matter as he does of the fact that he was not given a speedy trial. The statute as to bringing the case on for trial provides that the defendant must be brought to trial at the next regular term of court after the indictment, unless good cause to the contrary be shown. Code Section 5536. Whether the continuances to which defendant or his counsel agreed, or the sustaining of the State's motion for a continuance, were for good cause shown, we need not determine. The State's motion to dismiss or set aside the indictment and resubmit was sustained. The first indictment was set aside. Appellant's proposition that there were two indictments pending at the same time is not well taken. The offense charged being a felony, the action of the court is not, as said, a bar to another indictment. Code Section 5539; State v. Scott, 99 Iowa 36, 68 N.W. 451.
2. On April 20, 1922, defendant filed a motion to set aside the second indictment, one ground of which motion was that there was another indictment pending. Other grounds of the motion state conclusions that the grand jury was illegally drawn, and that the order of the court in setting aside the first indictment and ordering a new grand jury was contrary to law, without stating the reasons. On the same day, defendant filed a motion to set aside and dismiss the indictment, on substantially the same grounds. The motions were overruled, and the defendant entered a plea of not guilty.
We think it unnecessary to discuss the foregoing matters further, except to say that we have held that, if it appears that no valid objection exists to the grand jury which returned the indictment, except that the first jury was erroneously discharged, no substantial right of the defendant's was violated; for he had no legal right to have his case investigated by any particular jury. State v. Carter, 144 Iowa 371, 121 N.W. 801; State v. Heft, 148 Iowa 617, 127 N.W. 830; State v. Wilson, 166 Iowa 309, 317, 144 N.W. 47.
3. Thirty-three errors and points are relied upon. Those most elaborately argued and apparently most relied upon are those in regard to the claim that defendant was not given a speedy trial, and the proceedings in regard to the indictments, which have been discussed. It would be impracticable to discuss separately all the assignments. We shall notice those which seem to be at all controlling. The record has been examined, and all questions raised have been considered.
The sufficiency of the evidence generally and the corroboration of an alleged accomplice are challenged. The evidence is that of the State alone. The defendant did not testify, and no evidence was introduced in his behalf. Briefly, it is shown without dispute that the store of Charleson & Holt in the town of Goldfield, Iowa, was burglarized on the night of October 21, 1920, and merchandise consisting of shirts overcoats, suits, etc., to the value of approximately $ 3,000, was taken. A part of the merchandise was later found in the possession of the defendant and his accomplices, and was identified by the owners by their cost mark. The defendant was acquainted with one Naomi Purvis, a 16-year-old girl, who was living and working...
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