State v. Boucher

• Decision Date: 29 July 1946
• Docket Number: 46778.
• Citation: 23 N.W.2d 851,237 Iowa 772
• Parties: STATE v. BOUCHER.
• Court: Iowa Supreme Court

23 N.W.2d 851

237 Iowa 772

STATE v. BOUCHER.

No. 46778.

Supreme Court of Iowa

July 29, 1946

John M. Rankin, Atty. Gen., Charles H. Scholtz, Asst. Atty. Gen and George O. Hurley, Co. Atty. of Shelby County, of Harlan for appellant.

White & White and Bennett Cullison, all of Harlan, for appellee.

WENNERSTRUM Justice.

The defendant, Bernard Boucher, was indicted on February 28, 1945 by the grand jury of Shelby County, Iowa. The indictment charged him with the crime of rape as defined by section 12966 of the 1939 Code of Iowa, section 698.1 of the 1946 Code of Iowa. It was alleged that the crime was committed on the prosecuting witness on September 28, 1943. The defendant on March 2, 1945 entered a plea of not guilty. On March 5 1945 the defendant filed a motion for a bill of particulars which was denied and overruled by the court on April 2, 1945. On this last-mentioned date the defendant filed a motion to set aside the indictment. On April 3, 1945 the court sustained this motion and an order was then entered setting aside the indictment. The State of Iowa has appealed from the last referred to ruling and order.

In the motion for a bill of particulars, and also in the motion to set aside the indictment, it is contended that the minutes of the testimony of the witnesses who appeared before the grand jury do not disclose any evidence which would corroborate the testimony of the prosecuting witness as a matter of law. Section 13900 of the 1939 Code of Iowa, section 782.4 of the 1946 Code of Iowa.

The State of Iowa as appellant, states in its brief and argument that the sole question presented to this court on this appeal is: May a court set aside an indictment that charges a crime which requires corroboration, because the minutes of testimony attached to the indictment do not contain testimony which would, as a matter of law, corroborate the testimony of the prosecutrix as attached to the indictment. The appellee Bernard Boucher, is in agreement that the question as heretofore stated is the only one presented for our consideration.

We do not deem it necessary to set out in detail the testimony of the prosecutrix and of the several other witnesses as incorporated in the minutes attached to the indictment. We shall, in the main, discuss only the legal proposition presented and as heretofore set forth.

I. The authorities, generally, hold that an indictment should not be quashed or dismissed because of insufficiency of evidence. In 27 Am.Jur. 718, section 170, it is stated: 'Weight and Sufficiency of Evidence before Grand Jury. While an indictment may be quashed for want of any evidence supporting its charges, according to the great weight of authority the mere insufficiency of the evidence before a grand jury is not a ground for quashing an indictment; where there is some evidence before the grand jury tending to support the charge, the court will not, on motion to quash an indictment or on a plea to the indictment, inquire into the sufficiency of such evidence, especially where it is the right or duty of the grand jury to act on the knowledge of its own members, since the courts indulge in the prima facie presumption that the indictment was found on sufficient evidence. * * *'

In 42 C.J.S., Indictments and Informations, § 209, p. 1194, the following statement is found: 'On a motion to quash an indictment the court ordinarily will not review the character of the evidence on which the indictment was found and will not quash the indictment for mere insufficiency of evidence before the grand jury.'

For a summarization of annotation of cases bearing upon the statements previously quoted see 31 A.L.R. 1479, 59 A.L.R. 573, 579.

The prior holdings of this court support the general rule heretofore set forth. In State v. Smith, 74 Iowa 580, 584, 38 N.W. 492, 494, this court stated: 'But for another reason the motion was erroneously sustained. An indictment cannot be assailed by a motion on the ground that it was found upon incompetent or insufficient testimony. Code, §§ 4337, 4344; State v. Tucker, 20 Iowa 508; State v. Morris, 36 Iowa 272; State v. Fowler, 52 Iowa 103, 2 N.W. 983. The Code, in the sections above cited, prescribes the grounds upon which an indictment may be set aside on the motion of the defendant. The insufficiency or incompetency of the evidence upon which it is found, or the fact that the rights of the accused were violated in the proceeding before the grand jury, are not causes for setting aside the indictment under the statute. This point was not made on the submission of the case for our decision. We present it here for the reason that we do not wish, by silence, to give seeming sanction to the authority of the district court to review on motion the evidence upon which a grand jury acted.'

II. The consideration of certain statutory enactments is necessary in our study of the legal proposition presented on this appeal. Code section 13781, 1939 Code, section 776.1 of the 1946 Code, is as follows:

'Grounds for setting aside indictment. The motion to set aside the indictment can be made, before a plea is entered by the defendant, on one or more of the following grounds, and must be sustained:

'1. When it is not indorsed 'a true bill' and the indorsement signed by the foreman of the grand jury as prescribed by this code.

'2. When the names of all witnesses examined before the grand jury are not indorsed thereon.

'3. When the minutes of the evidence of the witnesses examined before the grand jury are not returned therewith.

'4. When it has not been presented and marked 'filed' as prescribed by this code.

'5. When any person other than the grand jurors was present before the grand jury when the question was taken upon the finding of the indictment.

'6. When any person other than the grand jurors was present before the grand jury during the investigation of the charge, except as required or permitted by law.

'7. That the grand jury were not selected, drawn, summoned, impaneled, or sworn as prescribed by law, except as hereinafter provided.'

Section 13732.04 of the 1939 Code, section 773.5 of the 1946 Code, sets forth the circumstances and conditions which will justify and authorize the court to order a county attorney to furnish a defendant charged with a crime with a bill of particulars wherein may be set forth a fact which the court may deem necessary to be furnished the defendant as an aid in preparing his defense.

Section 13732.05 of the 1939 Code, section 773.6 of the 1946 Code, is, in part as follows: 'Setting aside indictment. If it appears from the bill of particulars furnished under section 13732.04 that the particulars stated do not constitute the offense charged in the indictment, or that the defendant did not commit that offense, or that a prosecution for that offense is barred by the statute of limitations, the court may and on motion of defendant shall set aside the indictment unless the county attorney shall furnish another bill of particulars which so states the particulars as to show that the particulars constitute the offense charged in the indictment and that the offense was committed by the defendant and that it is not barred by the statute of limitations.'

It will be observed that the first referred to Code section gives the grounds for setting aside an indictment where a bill of particulars has not been asked by the defendant. The last referred to section sets out additional grounds for setting aside an indictment when a bill of particulars has been furnished. In neither of the sections set forth is insufficiency of evidence set out as a ground for setting aside an indictment.

The grounds for setting aside an indictment set out in the several Code sections are the exclusive grounds upon which the court can so act. In State v. Baughman, 111 Iowa 71, 72, 82 N.W. 452, 453, we said: '* * *, the defendant moved to set aside the indictment because a member of the grand jury returning it had previously formed and expressed an unqualified opinion of his guilt. This, a cause for challenge by one held to answer (section 5243, Code), is not recognized by the statute as a sufficient reason for setting aside an indictment. Section 5319 of the Code enumerates five grounds, numbering them, on one or more of which the motion to set aside must be sustained. * * *'

It is also stated in State v. De Groate, 122 Iowa 661, 662, 98 N.W. 495 496, as follows: 'The defendant's wife was a witness against him before the grand...