State v. Braskamp

• Decision Date: 02 February 1893
• Citation: 54 N.W. 532,87 Iowa 588
• Parties: STATE v. BRASKAMP ET AL.
• Court: Iowa Supreme Court

87 Iowa 588

54 N.W. 532

STATE

v.BRASKAMP ET AL.

Supreme Court of Iowa.

Feb. 2, 1893.

Appeal from district court, Sioux county; F. R. Gaynor, Judge.

On the 9th day of September, 1891, the grand jury of Sioux county returned an indictment, in due form, charging the defendants with maintaining a nuisance, by keeping and controlling a building for the sale of intoxicating liquors. On November 13, 1891, the defendants withdrew their plea of not guilty, previously entered, and moved to set aside the indictment upon the following grounds: That they were not held to appear to answer said charge at said September term, and had no opportunity to challenge the grand jury; that the grand jury which found and returned said indictment was impaneled at the January term, 1891, and was composed of seven members, while it should have been composed of only five, as shown by the state census of 1885, and that the same seven grand jurors did not serve at said September term. This motion was also overruled, and judgment entered against the defendants, from which they appealed.T. M. Zink, for appellants.

John Y. Stone, Atty. Gen., Thos. A. Cheshire, and Wm. Hutchinson, Co. Atty., for the State.

GIVEN, J.

1. The fact that appellants were not held to answer said charge at the September term, 1891, and that they did not challenge the grand jury, is not relied upon as a ground for setting aside the indictment, or in arrest of judgment, but it is set forth for the purpose of showing that they did not waive the other objections urged. Their first contention is that the grand jury which returned the indictment was illegally constituted, for that it consisted of seven members, instead if five. Section 231 of the Code, as amended, contains the following provision: “In counties having a population of sixteen thousand inhabitants, or less, the grand jury shall be composed of seven members. * * * Such population shall be determined by the last preceding national or state census.” The record of the court, as set out in the abstract, shows that on the 12th day of January, 1891, of 12 electors duly selected as grand jurors, 11 appeared, and from that number 7 were drawn and sworn as grand jurors; that on the 13th day of April, 1891, 10 of said 12 appeared, from which number 7 were drawn and sworn as grand jurors. It also shows that at a time of which no date is given, but which we presume to have been at the September term, 1891, 9 of said 12 appeared, from which number 7 were drawn and sworn as grand jurors. No two of said grand juries were composed entirely of the same persons. While appellants concede that according to the federal census, 1890, the grand jury was properly composed of seven members, their contention is that that census had not been officially announced at the time of the organization of the grand jury, in January, 1891, and that, therefore, the state census of 1885 should have controlled as to the number of grand jurors. The federal census of 1890 was provided for in chapter 319, p. 653, Supplement to 1 Rev. St. U. S., (2d Ed., 1874-91.) That act does not provide any time at which the taking of the census shall be deemed complete, nor for any official announcement of the census. Section 23 provides that upon request of any municipal government the superintendent of census shall furnish said government with a copy of the names, the age, sex, birthplace, and color or race of all persons enumerated within the territory in the jurisdiction of such municipality. Appellants insist that the officers and court selecting the grand jury could not take judicial notice of the federal census until it was officially announced, and that, therefore, the selection should have been upon the basis of the state...