State v. Hughes

• Decision Date: 21 April 1882
• Citation: 11 N.W. 706,58 Iowa 165
• Parties: THE STATE v. HUGHES
• Court: Iowa Supreme Court

11 N.W. 706

58 Iowa 165

THE STATE v. HUGHES

Supreme Court of Iowa, Des Moines

April 21, 1882

Appeal from Webster District Court.

THE defendant was indicted in Pocahontas county for the crime of bigamy; verdict and judgment having been rendered against him, he appeals.

AFFIRMED.

J. A O. Yeoman, for appellant.

Smith McPherson, Attorney-general, for the State.

OPINION

ADAMS, J.

I.

The defendant moved to quash the indictment, upon the ground that the grand jury by which it was found was not legally constituted. The facts disclosed by a stipulation are, that on the 23d day of June, 1873, a grand jury was duly called examined, charged, sworn and sent out to transact the business of a grand jury; that afterward, the grand jury, on the motion of the district attorney, was discharged; and afterward, on the 24th day of June, 1873, another grand jury was called, sworn, and charged, and sent out to transact the business of a grand jury, which is the grand jury which found the indictment.

The defendant's position is that the court had no power to discharge the first grand jury; that notwithstanding its supposed discharge, therefore, it was really in existence and being so the second was illegal, because there can be but one grand jury in a county at the same time.

Upon what ground the court acted in discharging the first grand jury does not appear. If it could be done for any reason it would be our duty to assume that it was done for a good reason. But the defendant insists that a grand jury legally called, examined, charged and sworn, cannot properly be discharged for any reason.

We will not go into that question. If a court, under some mistaken view of the law in regard to the legality of a grand jury, should discharge it, we do not think that its action could be treated as void. If there were no objection to the second grand jury except the erroneous discharge of the first, it will be seen at once that the objection to the second would be purely technical. No substantial right of the defendant would be affected. The objection urged, therefore, does not constitute a ground of reversal. Code, § 4538. We think that the motion to quash was properly overruled.

II. The defendant filed a demurrer to the indictment, which was also overruled. The first objection urged to the indictment is that it does not state in what year the lawful marriage was contracted, but states that the date of the lawful marriage is to the grand jury unknown.

In our opinion the date of the lawful marriage is not material. It was not the lawful marriage which constituted the offense. It was the second marriage, contracted while the defendant had a lawful wife living.

III. The next objection urged to the indictment is that, while it states that the first marriage took place in Illinois, it does not state that it was a lawful and valid marriage by the laws of Illinois. In our opinion this objection is not well taken. If the marriage was not valid by the laws of Illinois it was no marriage; and the statement contained in the indictment that the defendant was married, etc., could not be true.

IV. The next objection urged to the indictment is that, it does not state that the lawful wife of the defendant was, at the time of the second marriage, still living. But the indictment states that the marriage relation entered into by the lawful marriage still exists. This we think is sufficient.

The demurrer to the indictment, it appears to us, was properly overruled.

V. The defendant moved to strike the indictment from the files upon the ground that the same had been altered by erasure of certain words and insertion of others. In support of the motion, the defendant filed certain affidavits tending to show that no evidence was introduced before the grand jury as to the maiden name of the lawful wife; and that the indictment when returned showed that her maiden name was unknown, whereas it now shows that her maiden name was Johnson. The state introduced counter-affidavits tending to show that whatever change was made in the words of the indictment was made before its return. The court overruled the motion, being satisfied, we doubt not, that the fact of the alleged alteration was not established. We are now asked to review the evidence, and hold that the court erred in weighing it.

Whether in a conflict of evidence of a fact relied upon by the defendant in such a case, we should not hold the finding conclusive we do not determine. The affidavit of the person who was the district attorney at the time the indictment was found, and who is at present the district judge of that district, was introduced. It shows that he wrote the indictment, and that no change was made after it was returned. The well known high...