State v. De Bord

• Decision Date: 15 May 1893
• Citation: 88 Iowa 103,55 N.W. 79
• Parties: STATE v. DE BORD.
• Court: Iowa Supreme Court

88 Iowa 103

55 N.W. 79

STATE

v.DE BORD.

Supreme Court of Iowa.

May 15, 1893.

Appeal from distrct court, Union county; H. M. Towner, Judge.

The defendant was indicted, tried, and convicted of the crime of nuisance; and, his motion for a new trial being overruled, judgment was entered against him, from which he appeals.R. H. Hanna, for appellant.

John Y. Stone, Atty. Gen., and P. C. Winter, Co. Atty., for the State.

GIVEN, J.

1. The defendant moved to set aside the indictment “for the reason that the grand jury presenting or returning said indictment against the defendant, Thomas De Bord, were not selected, drawn, summoned, and sworn as prescribed by law.” A number of particulars are specified wherein it is claimed the grand jury was not selected as required by law. The only irregularity urged by argument is that the clerk and sheriff did not compare the ballots written out by the auditor with the lists returned by the judges of election, as required by section 240 of the Code. Said section is as follows: “At least twenty days previous 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, which have not been previously drawn as jurors during the year, on separate ballots; and the clerk of the district court, or his deputy, and sheriff, or his deputy, having compared said ballots with the list, and corrected the same, if necessary, shall place the ballots in a box provided for that purpose.” The clerk was the only witness examined as to the manner in which the grand jury was selected. His statements are somewhat confused and conflicting, and indicate a want of clearness of recollection. His statements, however, warrant the conclusion that the selection was made as follows: That the ballots written out by the auditor were placed in a box; that the sheriff would draw a name from the box, and the sheriff or auditor would state from what township the person drawn was, and if one had already been drawn from that township the ballot was laid aside. When not laid aside, the name was written by the auditor in the jury book, and by the clerk in the venire. The clerk states that he did not have the poll books beside him, or make any comparison therewith; that the auditor or sheriff looked at the book showing the township from which the several names were drawn.

The presumption is, in the absence of proof, that each of these officers performed the duty required...