State v. Clark

• Decision Date: 17 February 1909
• Citation: 119 N.W. 719,141 Iowa 297
• Parties: STATE v. CLARK.
• Court: Iowa Supreme Court

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

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

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 not insisted upon with the strictness which marked the common law, there has not been, nor can there safely be, any relaxation of the rules which require a legal accusation of crime to state with clearness and certainty all the facts necessary to constitute a complete offense, and disclose to the accused the nature of the case which the state proposes to make against him. The substance of the alleged crime--that is, the facts which are necessary to constitute a complete offense--must still be stated with certainty and precision. Our statute expressly provides that an indictment “must contain a statement of the facts constituting the offense” (Code, § 5280), and must be direct and certain as to the particular circumstances of the offense when they are necessary to constitute a complete offense. Code, § 5282.

There are crimes which may be committed by the accused in the secrecy and solitude of his room which do not directly or immediately affect any other person, and to charge such a crime it is ordinarily necessary to do no more than to charge the doing of the act and the unlawful or felonious intent. For example, the accused may be charged with the unlawful possession of burglar's tools, under Code, § 4790; he may adulterate food with intent to sell the same in violation of Code, § 4982; or may keep intoxicating liquors with intent to sell in violation of the prohibitory law, and a charge of an offense of this class may be made without alleging the purpose of the accused to injure any particular person. But by far the larger class of public offenses are not of this character. In most instances the offense against the state is complete only as the wrongful act operates upon or affects some third person. For example, there can be no assault without a person assaulted, no bribery without a person bribed, no unlawful sale without a purchaser, and no unlawful loaning of public moneys without a borrower, no larceny without trespass upon the property rights of another. State v. Allen, 32 Iowa, 248;State v. Brandt, 41 Iowa, 593;State v. Jackson, 128 Iowa, 543, 105 N. W. 51. It follows of necessity that in such cases the statement of the name of the third person without whom the crime cannot be...