State v. Higgins

• Decision Date: 29 May 1903
• Parties: THE STATE OF IOWA, Appellee, v. M. J. HIGGINS, Appellant
• Court: Iowa Supreme Court

95 N.W. 244

121 Iowa 19

THE STATE OF IOWA, Appellee, v. M. J. HIGGINS, Appellant

Supreme Court of Iowa, Des Moines

May 29, 1903

Appeal from Pottawattamie District Court.--HON. O. D. WHEELER Judge.

THE defendant was indicted for the crime of adultery. Upon trial he was convicted, and sentenced to a term in the penetentiary. He appeals. -- Affirmed.

AFFIRMED.

Fremont Benjamin and Stone & Tinley, for appellant.

Chas W. Mullan, Attorney General, and C. A. Van Vleck, Assistant Attorney General, for the State.

OPINION

BISHOP, C. J.

--The defendant was indicted, tried, and convicted at a term of the district court being held at Council Bluffs, the county seat of Pottawattamie county. Before the grand jury was sworn, the defendant interposed a challenge to the panel for the reason that the jurors were not selected, drawn, or summoned as required by law; it being said, first, the jurors were not drawn on selected from the body of the county, but from the territory in said county west of the west line of range 40; second, chapter 37, Acts Twenty-Second General Assembly, was repealed by the Code of 1897. It was conceded at the time of challenge that the grand jurors were drawn in the manner provided by law from a list made up exclusively of residents of the territory mentioned in the challenge. The challenge was overruled, and the defendant saved exception. An indictment having been returned, the defendant, upon being brought up for trial, interposed a similar challenge to the petit jury panel, and in respect thereto concession was made as to the facts the same as in connection with the challenge to the grand jury. This challenge was also overruled, and the ruling excepted to. The rulings so made may be considered together.

The statutes of the state are the sole source of authority for the institution and conduct of criminal proceedings and the question here presented must be determined by reference primarily to such statutes. Prior to 1884, all terms of court, both district and circuit, in and for Pottawattamie county, were held at Council Bluffs, and, under the general provisions of law in force, jurors, both grand and petit, were drawn from the body of the county as a whole. By chapter 198, Acts Twentieth General Assembly, it was provided, in substance, that terms of the circuit court should thereafter be held at Avoca, and that jurors for such terms should be drawn from residents of that portion of the county lying east of the west line of range 40. The act also provided that petit jurors for the term of the circuit court to be held at Council Bluffs should be drawn from residents of that portion of the county lying west of the west line of said range. The act did not, of course, affect the district court, the sessions of which were thereafter, as theretofore, held at Council Bluffs, and jurors, both grand and petit, were drawn from the county as a whole. By chapter 134, Acts Twenty-First General Assembly, the circuit court was abolished, and by such act (section 5) it was provided that terms of the district court shall be held "at all the places where district courts or circuit courts are held at the time this act takes effect; provided, that the grand jury shall only be required to attend at county seats, and the district court shall hold not less than two terms at other places than county seats where the circuit court is authorized to be held at the time this act takes effect and the district court shall hear and determine civil causes, including probate, only as heretofore exercised at such places by the circuit court, and jurors shall be drawn thereat as heretofore provided therefor." This act was amended by chapter 37, Acts Twenty-Second General Assembly, so that the portion of section 5 above quoted was made to read as follows: "At all places where district courts or circuit courts are held at the time this act takes effect; and grand jurors and petit jurors shall be drawn and summoned for the terms at all such places according to law from the territory from which petit jurors have heretofore been chosen; and the district court shall hold not less than two terms at other places than county seats where the circuit court is authorized to be held at the time this act takes effect, and the district court shall hear and determine all causes, including civil, probate and criminal, within the territory over which the circuit court has heretofore had jurisdiction, and grand and petit jurors shall be drawn thereat as heretofore provided therefor." It appears without controversy that since the taking effect of the act of the Twenty-Second General Assembly and down to the present time grand and petit jurors have been drawn and summoned for the terms at Council Bluffs from the territory west of the west line of range 40, and for the terms at Avoca from the territory east of the west line of range 40. No contention is made but that such was the course marked out and directed by the statute, and therefore, while such statute remained in force and effect at least, legal and proper to be pursued.

The contention in this case arises over the question of the effect to be given to the provisions of the present Code adopted in 1897. It is said in argument that, while the act of the Twentieth General Assembly, providing for terms of the circuit court at Avoca, is admittedly a special act, yet the acts of the Twenty-First and Twenty-Second General Assemblies referred to are in no sense special, but have all the characteristics of general acts, and must, therefore, be considered and construed as such. Assuming this to be true, it is contended that, in common with all other general acts, they were repealed by virtue of section 49 of the present Code, which provides as follows: "All public and general statutes adopted prior to the present extra session, * * * and all public and special acts the subjects whereof are herein revised, or which are repugnant thereto, are repealed, * * * but local acts are repealed only by express terms or on account of repugnancy." The act of the Twentieth General Assembly by which the circuit court of Avoca was created was without doubt a special act. The purpose thereof was to divide the county of Pottawattamie for judicial purposes, and in that sense was local in character. Knowledge of the existence of such act and of the purpose thereof was present the Twenty-First General Assembly when the act abolishing the circuit court and providing for the reorganization of the district court was passed. Such act, it is true, does not in terms mention the Avoca court, but therein is the provision that terms of the district court shall be held at all places other than county seats where terms of the circuit court had previously been held, and that jurors for such terms of the district court shall be drawn and summoned as theretofore provided for the circuit court terms. Further, it is to be said that the General Assembly was well advised of the fact that...