State v. Brown
| Decision Date | 07 March 1905 |
| Citation | 102 N.W. 799,128 Iowa 24 |
| Parties | STATE OF IOWA, Appellee, v. STEWART C. BROWN, Appellant |
| Court | Iowa Supreme Court |
Appeal from Iowa District Court.--HON. O. A. BYINGTON, Judge.
INDICTMENT for perjury. Trial to a jury. Verdict and judgment of guilty and defendant appeals.
Affirmed.
Tom H Milner and Thomas Stapleton, for appellant.
Charles W. Mullan, Attorney General, and Lawrence De Graff, Assistant Attorney General, for the State.
Defendant, Brown, had a contract with the United States government for carrying the mail between Marengo and Belle Plaine. He sublet this contract to one Fields, and Fields assigned his right therein to one Henry. As the government did not recognize these assignments, it sent its warrants for each quarter's work to Brown, and he either collected the money thereon and paid it over to Henry, or indorsed the warrants and delivered them to Henry shortly after he received them. Defendant turned over all the warrants or the money received thereon save the last, which covered a fractional quarter, as we understand it. The amount thereof was $ 41.60. This he did not, it is claimed, turn over to Henry, because, as he (Brown) asserted, Henry was owing him an unsettled account. After much parleying over the matter, Henry finally had Brown arrested, charging him with having obtained the money under false pretenses. The information was filed before a justice, and, in addition to the facts above recited, it stated that Brown promised and agreed to indorse all warrants issued by the government over to Henry; that he turned them all over save the last, which he received, and fraudulently converted to his own use, under a false promise that he would take the draft, indorse the same, and turn it over to Henry. It appears that the county attorney refused to have anything to do with the charge, and that Henry prosecuted it on his own behalf. On the trial of that charge defendant testified that he paid the money called for by the warrant to Henry at Marengo, Iowa in the year 1903, by delivering to him four ten-dollar bills, one silver dollar, one fifty and one ten cent piece. As a result of that trial, defendant was acquitted. Preliminary information was thereupon filed against him before a magistrate, and on an examination into the charge he was held to answer to a grand jury, which was to sit at the October, 1903, term of the district court of Iowa county. That grand jury did not return an indictment, but the one sitting at the next January, 1904, term did make a presentment for the crime of perjury, which is the one on which defendant was convicted, and on which the judgment was rendered from which he appeals. This indictment charges the defendant with having committed perjury in swearing to the payment of the money to Henry, and of this he was convicted. Several propositions are relied upon for a reversal.
I. First, it is argued that, as defendant was not given an opportunity to challenge the grand jury which returned the indictment against him, his motion in arrest of judgment, based thereon, should have been sustained. There is a controversy between counsel as to the record with reference to this matter, and we have gone to the transcript, which has been certified under the rule for our inspection. From this it appears that the grand jury for the October, 1903, term of court, took up defendant's case, but for some reason did not conclude its investigations, and continued the same until the next January, 1904, term, returning the files to the clerk of the district court, with the indorsement of the order of continuance thereon. Defendant made no objection to the continuance, and he did not ask for his release. The grand jury for the January, 1904, term of court, was duly and legally impaneled and sworn as provided by law; and the record does not show whether or not defendant was given an opportunity to challenge this grand jury, or the individual members thereof. There is no sufficient showing that the January grand jury took any of the papers used by the October grand jury, or that it had any of these matters before it, or considered any of the evidence taken by the grand jury sitting in October. There was no order of the court recommitting the defendant or resubmitting his case to the January grand jury. It is sufficiently shown, however, that defendant was not given an opportunity to challenge the January grand jury. But as he did not appear and request it, and made no objection to the proceedings until after his conviction by the trial jury, when he filed a motion in arrest of judgment, he is in no position to object thereto. State v. Kouhns, 103 Iowa 720, 73 N.W. 353; State v. Reid, 20 Iowa 413. A motion in arrest of judgment is not the proper method whereby to reach the defect or error, if there was one, in the proceedings. The objection should have been made by plea in abatement, motion to set aside, or to quash the indictment. One is not allowed to speculate on the verdict as defendant did in this case.
Moreover, the October grand jury had no authority to continue the case. By refusing or failing to indict the defendant he was entitled to his discharge and an exoneration of his bail. The trial court did not order the continuance of his case, and made no resubmission thereof to the January grand jury. So that the case stands as if the January grand jury had taken the matter up on its own motion. This, under our statutes, it had a right to do, although defendant was not indicted by the October grand jury, and the court made no order resubmitting the case. State v. Collis, 73 Iowa 542, 35 N.W. 625.
There is no showing that the January grand jury knew anything of the prior proceedings, or that it had any of the papers used by or the evidence taken before the grand jury for the October term. There is no showing of any prejudice to the defendant, and his motion in arrest was properly overruled. State v. Felter, 25 Iowa 67; State v. Fowler, 52 Iowa 103, 2 N.W. 983.
II. The indictment is challenged because it does not sufficiently negative the truth of the matter sworn to. The allegation is, "Whereas, in truth and in fact, as defendant well knew, he did not turn over or pay to said Henry the amount received upon said draft, or the moneys he testified to as aforesaid," etc. This is in exact accord with the books. State v. Gallaugher, 123 Iowa 378, 98 N.W. 906, and cases cited.
III. Defendant's wife was subpoenaed to appear before the grand jury. In response to this subpoena she came before them, and was examined as a witness. Her name was indorsed upon the indictment as one of the witnesses, but she was not used by the state on the trial of the case. Defendant called her as a witness in his behalf, and the state thereupon undertook to impeach her by showing contradictory statements made by her before the grand jury. To some of this testimony from grand jurors defendant objected as incompetent immaterial, and not the best evidence. These objections were overruled, and of this complaint is made. The argument now made is that the wife was not a voluntary witness before the grand jury, and that the testimony from grand jurors as to what she said before them should not have been received, for the reason that the state cannot discredit a witness used by it before a grand jury, and for the further reason that the state in effect used the wife as a witness against her husband. This last point was not made in the district court, and is not covered...
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