State v. Bige, No. 34923.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtPRESTON
Citation195 Iowa 1342,193 N.W. 17
Docket NumberNo. 34923.
Decision Date03 April 1923
PartiesSTATE v. BIGE.

195 Iowa 1342
193 N.W. 17

STATE
v.
BIGE.

No. 34923.

Supreme Court of Iowa.

April 3, 1923.


Appeal from District Court, Wright County; 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.

[193 N.W. 18]

F. J. Lund, of Webster City, and J. W. Henneberry, of Eagle Grove, for appellant.

Ben J. Gibson, Atty. Gen., Maxwell A. O'Brien, Asst. Atty. Gen., and J. A. Rogers, Co. Atty., of Clarion, for the State.


PRESTON, C. J.

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 substantially made nunc pro tunc. 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, and 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

[193 N.W. 19]

without the cause being 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 may 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 337a, 337b, 337c, and 337d of 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 of the February term ordering a new grand jury; that defendant was indicted by a former grand jury, to which no objection was made, and 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. Other 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.

[1][2] 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 defendant is not now in a position to complain that 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, § 5319. Section 5324 is to the effect that, where the motion is sustained and the indictment set aside, the court may 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. Code, § 5326.

[3] The appellant does not...

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19 practice notes
  • State v. Davis, No. 46620.
    • United States
    • United States State Supreme Court of Iowa
    • September 22, 1945
    ...held that a defendant has no legal right to have his case investigated by any particular Grand Jury. State v. Bige, 195 Iowa, 1342, 1346, 193 N.W. 17;State v. Carter, 144 Iowa 371, 375, 121 N.W. 801;State v. Wilson, 166 Iowa 309, 317, 144 N.W. 47,147 N.W. 739. We have also held that a count......
  • State v. Thrasher, No. 53164
    • United States
    • United States State Supreme Court of Iowa
    • March 10, 1970
    ...the effect of 'flight' may be proper even though there is no direct evidence the accused fled to avoid arrest, we said in State v. Bige, 195 Iowa 1342, 1347--1348, 193 N.W. 17, 'It is thought by appellant that the court was not warranted in giving an instruction on flight, because there was......
  • State v. Webb, No. 65028
    • United States
    • United States State Supreme Court of Iowa
    • August 26, 1981
    ..."It was for the jury to say, under all the circumstances, whether he departed because of his consciousness of guilt." State v. Bige, 195 Iowa 1342, 1348, 193 N.W. 17, 20 (1923), partially overruled on other grounds, State v. Johnson, 217 N.W.2d 609, 612 (Iowa III. Refusal to compel disclosu......
  • Iowa v. Buckley, No. 1--56537
    • United States
    • United States State Supreme Court of Iowa
    • August 29, 1975
    ...speedy indictment or trial had been held to be without prejudice. State v. Gebhart, 257 Iowa 843, 134 N.W.2d 906 (1965); State v. Bige, 195 Iowa 1342, 1345, 193 N.W. 17, 19 (1923) ('The defendant had not been placed in jeopardy by the mere returning of the indictment.'); § 5013, Revision of......
  • Request a trial to view additional results
19 cases
  • State v. Davis, No. 46620.
    • United States
    • United States State Supreme Court of Iowa
    • September 22, 1945
    ...held that a defendant has no legal right to have his case investigated by any particular Grand Jury. State v. Bige, 195 Iowa, 1342, 1346, 193 N.W. 17;State v. Carter, 144 Iowa 371, 375, 121 N.W. 801;State v. Wilson, 166 Iowa 309, 317, 144 N.W. 47,147 N.W. 739. We have also held that a count......
  • State v. Thrasher, No. 53164
    • United States
    • United States State Supreme Court of Iowa
    • March 10, 1970
    ...the effect of 'flight' may be proper even though there is no direct evidence the accused fled to avoid arrest, we said in State v. Bige, 195 Iowa 1342, 1347--1348, 193 N.W. 17, 'It is thought by appellant that the court was not warranted in giving an instruction on flight, because there was......
  • State v. Webb, No. 65028
    • United States
    • United States State Supreme Court of Iowa
    • August 26, 1981
    ..."It was for the jury to say, under all the circumstances, whether he departed because of his consciousness of guilt." State v. Bige, 195 Iowa 1342, 1348, 193 N.W. 17, 20 (1923), partially overruled on other grounds, State v. Johnson, 217 N.W.2d 609, 612 (Iowa III. Refusal to compel disclosu......
  • Iowa v. Buckley, No. 1--56537
    • United States
    • United States State Supreme Court of Iowa
    • August 29, 1975
    ...speedy indictment or trial had been held to be without prejudice. State v. Gebhart, 257 Iowa 843, 134 N.W.2d 906 (1965); State v. Bige, 195 Iowa 1342, 1345, 193 N.W. 17, 19 (1923) ('The defendant had not been placed in jeopardy by the mere returning of the indictment.'); § 5013, Revision of......
  • Request a trial to view additional results

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