State v. Hassan

Citation128 N.W. 960,149 Iowa 518
PartiesSTATE v. HASSAN ET AL.
Decision Date15 December 1910
CourtUnited States State Supreme Court of Iowa

OPINION TEXT STARTS HERE

Appeal from District Court, Crawford County; F. M. Powers, Judge.

Defendants were jointly indicted for the crime of murder in the first degree. They were each convicted of murder in the second degree, and appeal. Affirmed.Conner & Lally, for appellants.

H. W. Byers, Atty. Gen., Chas. W. Lyon, Asst. Atty. Gen., and P. J. Klinker, Co. Atty., for the State.

DEEMER, C. J.

Defendants are Assyrian peddlers, and are accused of having killed and murdered one of their countrymen, Fred Nawful by name, who it is said was their cousin, in Crawford county, Iowa, on or about January 5, 1907. They were first indicted by a Crawford county grand jury on the 8th day of February, 1907, and on the 12th of that month they appeared by attorneys, and moved to quash the said indictment because the grand jury which found it was illegally drawn and impaneled. Their motion was overruled, and the case was continued until the next term of court, and on the first day of that term the county attorney moved to set aside the grand and petit juries drawn for the year 1907, and on the next day to set aside the indictment returned against the defendants for the reason that the grand jurors which found it had been illegally selected, drawn, and impaneled. These motions were each sustained, and defendants herein were held in custody to await the action of a new grand jury. To this latter action defendants excepted. On April 9th the board of supervisors selected a new grand jury list under the provisions of chapter 12, Acts 32d Gen. Assem., and a new grand jury was impaneled to which it was proposed to resubmit defendants' case. Defendants interposed a challenge to the new panel because improperly selected and drawn, because the prior grand jury was illegally and unlawfully set aside, because they had theretofore been indicted by a legal grand jury, and because the present grand jury was not a lawful or legal one. This challenge was sustained, and under the provisions of the Code before quoted the court ordered the board of supervisors to reconvene and select a new list of grand and petit jurors. This order was complied with, and the persons so selected appeared and a new grand jury was drawn. To this panel defendants also interposed a challenge based upon practically the same grounds as the challenge to the former panel save that it was also contended that the court was in error in sustaining the previous challenge and in ordering new lists drawn by the board of supervisors. Various other technical defects were urged against the order for the last drawing and in the selection of the last-named grand jury. This challenge was overruled. Seven men were then called into the box, and one of these was challenged individually, and counsel sought to examine him as to his qualifications. To certain questions propounded the state objected, and the objections were sustained. The persons called were then selected as a grand jury and defendants' case was resubmitted to them. On April 17th this grand jury returned the indictment upon which defendants were tried, the charge being identical with that made in the first indictment. On September 10th following defendants filed a petition for change of venue. This petition was overruled and defendants excepted. The case went to trial before a jury on September 16, 1907, resulting in the verdict hitherto stated. Counsel for appellants have filed a so-called brief of 129 pages, which does not comply with our rules; but which points out something like 112 alleged errors on the part of the trial court. These are iterated and reiterated many times, sometimes without argument and sometimes with it, and but for the nature of the case we should feel disposed to disregard this “brief” entirely. However, the nature of the offense is such that we shall consider such points argued in that part of the argument called “brief” as are deemed important or controlling.

1. On February 12th defendants filed a motion for leave to inspect certain exhibits introduced before the grand jury in which it was alleged that certain merchandise belonging to defendants had been taken from them without their authority at the time of the arrest, that they were denied the right of access thereto, and that without examination they could not properly prepare their defense. This motion was overruled and exception taken. This proposition is argued upon the theory that the overruling of the motion deprived defendants of some constitutional right; the thought being, as we understand it, that the taking of the goods from defendants constituted an unreasonable search and seizure, and that thereby and by reason of the ruling, denying them access to the goods, they were deprived of their liberty without due process of law. State v. Height, 117 Iowa, 650, 91 N. W. 935, 59 L. R. A. 437, 94 Am. St. Rep. 323, and Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746, are cited in support of the proposition. Neither case is in point. When defendants were arrested it was the duty of the sheriff to take and care for their property, and if perchance any of the property so taken in itself or when considered with other circumstances bore some evidence of defendants' guilt, this was their misfortune. No unreasonable search or seizure was shown, nor were defendants deprived of any constitutional right. The trial court did not abuse its discretion in denying the motion. The indictment which was then pending against defendants was afterwards dismissed, and the motion was not renewed after the indictment on which the case was tried was returned. Again, there was no such showing regarding the necessity for the production of the property as would justify us in interfering with the order.

2. Complaint is made of the refusal to set aside the indictment on which the case was tried and of all the preliminary matters from the time of defendants' arrest down to the time the trial was commenced. It is said that the court erred in setting aside the first indictment for the reason that the grand jury which found it was a legally constituted body; that the trial court erred in setting aside the two grand jury panels; and erred in holding defendants, and in resubmitting the case to the subsequent grand jury. It will be remembered that defendants moved to quash the first indictment, and that their motion was overruled and exception taken. Thereafter the county attorney, on his own motion, had the list of grand jurors selected for the year 1907 set aside on the same grounds as were insisted upon by defendants as a ground for quashing the indictment, and the county attorney also dismissed the first indictment, and defendants were ordered held in custody until their case could be submitted to another grand jury. Against these proceedings defendants protested; but as they had already challenged the indictment on the same grounds, and had excepted to the ruling of the trial court denying their motion, they are in no position to complain of the action of the county attorney.

Defendants challenged the second grand jury, and their challenge was sustained. Of this they cannot of course complain. When the last grand jury was called they again interposed a challenge, based upon the ground that they had already been indicted by a legal grand jury, that the county attorney illegally dismissed the prior indictment, and that the third grand jury was an illegal body. They also made many objections to the method of the selection and drawing of the last grand jury. Among these are certain alleged irregularities of the county auditor and the board of supervisors. We have already seen that defendants are in no position to complain of the discharge of the first or second grand juries. And the order holding them in custody and ordering their case resubmitted to the last grand jury was clearly correct and in accord with the usual practice in such cases. But even were this not true, and the trial court was in error in discharging the first grand jury and setting aside the indictment, defendants suffered no prejudice. They had no vested right in any particular jury list, and their attack upon the order discharging the first grand jury and dismissing the indictment is purely collateral. State v. Disbrow, 130 Iowa, 19, 106 N. W. 263;State v. Hart, 67 Iowa, 142, 25 N. W. 99;State v. Hughes, 58 Iowa, 165, 11 N. W. 706. The propositions relied upon with reference to the manner of selecting and drawing the last grand jury are purely technical and without merit. Indeed they are not argued in defendants' brief. Substantial compliance with the law is all that is required in such cases. State v. Edgerton, 100 Iowa, 63, 69 N. W. 280;State v. Pierce, 90 Iowa, 506, 58 N. W. 891. Such technical defects as failure to name the number of grand jurors to be drawn in the notice to the board of supervisors; failure to serve notice upon the board; failure to record the list of grand jurors selected by the board, and in the call of the board--will be disregarded as unsubstantial and without prejudice.

The questions propounded to an individual grand juror as ground of challenge were improper. The questions asked related to what the juror would do in the event the county attorney should insist upon an indictment. There was nothing to justify such questions. Nothing was asked regarding his qualifications to sit in the case, and the court did not abuse its discretion in sustaining an objection to the questions asked.

3. The application for change of venue was in the usual form and was supported by the affidavit of 28 people. The state filed counter affidavits signed by 31 affiants. The ground for the change was prejudice on the part of the people. The trial court, in view of the showing made, which, as may well be imagined, was conflicting, did not abuse its discretion in denying the petition for a change of venue. State v....

To continue reading

Request your trial
4 cases
  • State v. Laundy
    • United States
    • Oregon Supreme Court
    • 28 Febrero 1922
    ... ... consequently the policemen had a right to do whatever they ... could have done if they had held a warrant of arrest ... Smith v. State, 3 Ga.App. 326, 59 S.E. 934; ... Jenkins v. State, 4 Ga.App. 859, 62 S.E. 574. See, ... also, State v. Hassan, 149 Iowa, 518, 524, 128 N.W ... 960 ... [103 ... Or. 496] An arresting officer who makes a lawful arrest may ... search his prisoner, and, in the language of Bishop-- ... "if ... he finds on the prisoner's person, or otherwise in his ... ...
  • Haverstick v. State
    • United States
    • Indiana Supreme Court
    • 28 Abril 1925
    ...82 Fla. 355, 360, 91 So. 376;Dozier v. State, 107 Ga. 708, 33 S. E. 418;North v. People, 139 Ill. 81, 107, 28 N. E. 966;State v. Hassan, 149 Iowa, 518, 524, 128 N. W. 960;Turner v. Commonwealth, 191 Ky. 825, 830, 231 S. W. 519;Getchell v. Page, 103 Me. 387, 69 A. 624, 18 L. R. A. (N. S.) 25......
  • Haverstick v. State
    • United States
    • Indiana Supreme Court
    • 28 Abril 1925
    ... ... State v. Magnano (1922), 97 Conn. 543, 117 ... A. 550; State v. Gulczynski (1922), 120 A ... 88; Haile v. Gardner (1921), 82 Fla. 355, ... 360, 91 So. 376; Dozier v. State (1899), ... 107 Ga. 708, 33 S.E. 418; North v. People ... (1891), 139 Ill. 81, 107, 28 N.E. 966; State v ... Hassan (1910), 149 Iowa 518, 524, 128 N.W. 960; ... Turner v. Commonwealth (1921), 191 Ky. 825, ... 830, 231 S.W. 519; Getchell v. Page (1908), ... 103 Me. 387, 69 A. 624, 18 L. R. A. (N. S.) 253, 125 Am. St ... 307; People v. Cona (1914), 180 Mich. 641, ... 147 N.W. 525; Toliver v. State (1923), ... ...
  • State v. Hassan
    • United States
    • Iowa Supreme Court
    • 15 Diciembre 1910

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT