State v. Fertig

• Decision Date: 13 May 1896
• Citation: 98 Iowa 139,67 N.W. 87
• Parties: STATE v. FERTIG.
• Court: Iowa Supreme Court

98 Iowa 139

67 N.W. 87

STATE

v.FERTIG.

Supreme Court of Iowa.

May 13, 1896.

Appeal from district court, Floyd county; P. W. Burr, Judge.

The defendant was indicted, tried, and convicted upon a charge of keeping and maintaining a nuisance by the sale of intoxicating liquors, and she appeals. Reversed.S. W. Woodhouse, for appellant.

Frank Lingenfelder, Co. Atty., and Milton Remley, Atty. Gen., for the State.

ROTHROCK, C. J.

1. The defendant filed a motion to set aside the indictment upon the ground that H. J. Fitzgerald, who was not a member of the grand jury, was present before the grand jury during the investigation of the case against the defendant, and that said Fitzgerald took part in the proceeding, by examining witnesses. The motion was denied, and complaint is made of the ruling. By section 4337 of the Code, one of the grounds for setting aside an indictment is, “When any person other than the grand jurors was present before the grand jury when the question was taken upon the finding of the indictment, or when any person other than the grand jurors, was present before the grand jury during the investigation of the charge except as required or permitted by law.” It appears from the showing made in the support of the motion that Fitzgerald was present before the grand jury, and examined a witness in part, and advised with the grand jurors in regard to the charge against the defendant. But it does not appear that he was present when the vote was taken on the finding of the indictment. And no showing was made as to the authority under which Fitzgerald acted in the investigation. It was incumbent on the defendant to show that he was present unlawfully, or that, in language of the statute, he was not “required or permitted by law” to be present. It is provided by section 270 of McClain's Code that “the county attorney may appoint deputies * * * to assist him in the discharge of his duties.” One of the duties to be performed is to attend the grand jury for the purpose of examining witnesses in their presence, or giving them advice in any legal matter. McClain's Code, § 274. It is very plain that it was not unlawful for Fitzgerald to perform the service complained of, if he was a deputy of the county attorney. And, as there was no showing that he was not so authorized, there was no error in overruling the motion. Fitzgerald was a witness on the trial, and testified that he was assisting the county attorney at the time the indictment was found.

2. The defendant was indicted jointly with her husband, George Fertig. It appears that they kept a room in their dwelling house where intoxicating liquors and other things, such as cigars and tobacco, were kept for sale. The place appears to have been called a restaurant. There was but one witness examined on the trial who testified to sales of liquors. He was first examined as a witness for the state, and later he was a witness for the defendant. It appears from his testimony that he frequently bought intoxicating liquors in the saloon or restaurant, and he was always waited upon by the defendant, and that liquors were not at any time directly sold to him by the defendant's husband. The court instructed the jury upon the liability of the wife as follows: “(7) The law presumes that the influence of a husband over his wife is such that she is not held criminally liable for the unlawful acts done by her in his presence, unless there is evidence to rebut this presumption, and satisfy the jury that the wife, in what she did, if anything, was exercising a free volition, and was guilty of independent criminal action on her own part; and she cannot be found guilty unless you find that she was exercising, in what she did, if anything is shown, a free will to do or not to do, and an independent criminal action on her own part when in his presence. (8) It is not necessary that the husband should be in the actual, physical presence of the wife, before there can be a presumption that the wife is coerced. If the husband was about the premises, even though in another room, or in another part of the premises, the presumption will still prevail, if she was so immediately near him as fairly to be held under his control or in his presence.” No complaint is made of these instructions. They were applicable to the evidence in the case. There is much in the testimony of the single witness who was examined in the case to require just such a charge to the jury. While it is true the witness testified that the defendant served him with the liquors he bought, yet there is much in his testimony which tends to show that it was done under the express orders of the husband, who had complete control over her, as appears from the following testimony of the witness. “Q. Do I...