State v. Daily

• Decision Date: 10 April 1901
• Parties: STATE v. DAILY.
• Court: Iowa Supreme Court

113 Iowa 362

85 N.W. 629

STATE

v.DAILY.

Supreme Court of Iowa.

April 10, 1901.

Appeal from district court, Iowa county; M. J. Wade, Judge.

Defendant was indicted, tried, and convicted of the crime of seduction, and from the judgment imposed appeals. Reversed.Thomas Stapleton and D. P. Thomas, for appellant.

C. W. Mullan, Atty. Gen., and Chas. A. Van Vleck, Asst. Atty. Gen., for the State.

DEEMER, J.

The indictment alleges that the crime was committed “in the county of Iowa and the state of Iowa, or within Keokuk county, Iowa, within five hundred yards of the southern line of Iowa county, as nearly as the grand jury know and can state.” After conviction defendant moved in arrest of judgment on the ground that the indictment failed to charge an indictable offense within the jurisdiction of or triable by the district court of Iowa county, in that it failed to properly aver venue. This motion was overruled, and the exception to this ruling presents the first matter for our consideration. It must appear from the indictment itself “that the offense is triable within the jurisdiction of the court.” Code, § 5289. This must be shown by express averment, and not by inference or suggestion. Unless it clearly appears that the crime alleged was committed in the county where the indictment was found, or within 500 yards of the boundary thereof, the court has no jurisdiction. Code, §§ 5154, 5158. There was, it is true, no necessity for averring that the crime was committed within 500 yards of the boundary of Iowa county; for, under an allegation that it was committed in Iowa county, the fact that the place of the offense was within 500 yards of the boundary thereof could be shown. State v. Pugsley, 75 Iowa, 742, 38 N. W. 498. But the pleader was not content to stand on this naked averment. He states that the crime was committed in Iowa county, or in Keokuk county, within 500 yards of the south line of Iowa county, as nearly as the grand jury knew and could state. Whether the offense was committed in Iowa or Keokuk county does not clearly appear. It may have been in either, but, if in Keokuk county, it does not sufficiently appear that it was within 500 yards of the south line of Iowa county. The averment is that, “as nearly as the grand jury knew and can [could] state,” it was within the 500-yard limit. In so far as the allegation is concerned, the crime may have been committed within the jurisdiction of the court, or it may not have been. It was the duty of the grand jury to know and to state that the offense was committed at a place within the jurisdiction of the court to which their...