State v. Clark

• Court: United States State Supreme Court of Iowa
• Writing for the Court: WEAVER
• Citation: 119 N.W. 719,141 Iowa 297
• Parties: STATE v. CLARK.
• Decision Date: 17 February 1909

141 Iowa 297
119 N.W. 719

STATE
v.
CLARK.

Supreme Court of Iowa.

Feb. 17, 1909.

Appeal from District Court, Jefferson County; D. M. Anderson, Judge.

Indictment for cheating by false pretenses. Trial to a jury, and verdict of guilty. Motion for a new trial overruled, and from the judgment entered on the verdict the defendant has appealed. Reversed and remanded for a new trial.

[119 N.W. 719]

Claude R. Porter and Crail & Crail, for appellant.

H. W. Byers, Atty. Gen., and C. W. Lyon, Asst. Atty. Gen., for the State.

[119 N.W. 720]

WEAVER, J.

1. The appellant moved to set aside the indictment because of the alleged disqualification of three grand jurors upon the panel from which was drawn the grand jury by which the indictment was returned. The statute (Code Supp. 1907, § 337) makes it the duty of election boards to certify that the jury lists returned by them do not contain the name of any person who directly or indirectly requested to be included therein. It is shown in the record that upon the full panel of grand jurors drawn for the year in question were three persons each of whom had served upon an election board which returned names for the grand jury list, though no two of them served in the same precinct. One of these persons was a member of the grand jury which returned this indictment. It is argued that the fact that the name of a member of an election board appears upon a jury list is conclusive evidence that it was so returned by his direct or indirect request, and that such fact goes to the legal integrity of the panel, and invalidates the indictment. But the argument is unsound. As already noted no two of these grand jurors were members of the same election board. These boards are composed of at least three members, and the mere fact that the name of one of them appears in the list returned affords no proof that the person so designated was placed therein at his request. This we have already held in a late case. See State v. Anderson, 118 N. W. 772. Membership of the election board is not a disqualification for jury service. The purpose of the statute referred to is to keep the jury lists free from the presence of those who solicit or seek places thereon. The burden is upon the objector to show the fact of such solicitation or seeking. There is no evidence of such fact in this case, and the presumption is that the lists were properly made, and the certification that they contain no such names is true and correct.

It is further sought to set aside the indictment because the grand jury list from which the panel was drawn contained but 73 names instead of 75 as required by law. This court is already committed to the doctrine that such slight deviations from the statutory methods of selecting a grand jury involve no material error. See, precisely in point, State v. Carney, 20 Iowa, 82; State v. Brandt, 41 Iowa, 602. The motion to set aside the indictment was therefore properly overruled.

2. The appellant also demurred to the indictment because of its alleged failure to state the name of the owner of the property which is alleged to have been obtained by false pretenses, and does not state facts constituting an offense against the laws of this state. This demurrer was overruled, and error is predicated on such ruling. The material portion of the indictment is in the following language: “The said W. G. Clark on the 9th day of November, A. D. 1904, in the county of Appanoose and state of Iowa, did then and there unlawfully, willfully, feloniously, designedly and with intent to defraud one Ella Close, represent and pretend to said Ella Close, he, the said W. G. Clark, was the owner of certain property in Centerville, Iowa, to wit, lot nineteen (19) in Clark & Peatman's addition to the city of Centerville, Iowa, and that said property was free from all incumbrances of every kind, and then and there offered to convey to said Ella Close said property above described on payment to said W. G. Clark of a certain sum of money, to wit, nine hundred and fifty dollars, by good and sufficient warranty deed, and relying on said representation, and in pursuance of said offer, the said Ella Close was then and there induced to pay to the said W. G. Clark the sum of nine hundred and fifty dollars in payment for the purchase of said property. Whereas, in truth and in fact, said land above described was not clear and free from all incumbrances, and said W. G. Clark did not have a clear title to said land, there being at the time a mortgage in existence covering and including said property above described, said mortgage being for the sum of five hundred dollars and given by one C. J. Miller to one John Galbraith. And the said W. G. Clark falsely and fraudulently made said representations to said Ella Close, designedly and with intent to defraud, then and there knowing said representations to be false, and for the purpose of procuring from said Ella Close nine hundred and fifty dollars as aforesaid. And the said Ella Close believed said representations and pretenses so made to be true, and relied thereon, and was induced to deliver to said W. G. Clark said nine hundred and fifty dollars as above mentioned, and said Ella Close was thereby defrauded, contrary to law, and in such case made and provided and against the peace and dignity of the state of Iowa.” These allegations we think are open to the objection made by the appellant. While under our statutes and practice mere matters of form are...