State v. Johnson
| Decision Date | 07 May 1907 |
| Citation | 111 N.W. 827,136 Iowa 601 |
| Parties | STATE OF IOWA, Appellee, v. T. W. JOHNSON, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED, MONDAY, DECEMBER 16, 1907.
Appeal from Linn District Court.--HON. J. H. PRESTON, Judge.
DEFENDANT was convicted of keeping a liquor nuisance, and from the judgment imposed appeals.
Affirmed.
John A Reed and W. E. Lamb, for appellant.
H. W Byers, Attorney General, and C. W. Lyon, Assistant Attorney General, for the State.
Defendant was held to answer to the grand jury by a committing magistrate, and a transcript of the proceedings was filed in the district court August 11, 1905. On the second day of the September term of the Linn county district court, it being the 19th day of September, defendant appeared and challenged the grand jury on the ground that the same was not selected, drawn, and summoned as provided by law. It appears that at the January, 1905, term of court, an order was made declaring that the grand jury which had been drawn for the year 1905 was illegal, and a new grand jury was ordered drawn for that year. Thereupon the twelve names which had been drawn for that year were returned into the grand jury box and a new drawing was had, and of the twelve redrawn two were of those first drawn. These two were G. B. Bunger and J. C. Brown, who resided in different townships of the county. Of the twelve drawn two did not appear. From the ten appearing the grand jury was drawn. Defendant's challenge was overruled. On the 19th day of October the grand jury so drawn returned an indictment against defendant, and on the 26th of that month he (defendant) filed a motion to set it aside upon the same grounds set forth in his challenge. This motion was overruled. November 15th, defendant demurred to the indictment and this demurrer was also overruled. On the 13th day of December the cause was marked, "Continued by the court," and on the 21st of that month defendant appeared, moved to set aside the order for continuance, and demanded a trial. This was also overruled. At the next January, 1906, term of court, defendant moved for a dismissal of the indictment upon the ground that he had not been tried at the next term after the indictment was returned. This was also overruled. Such proceedings were thereafter had that at said January term defendant was found guilty of the offense charged, and sentenced to pay a fine of $ 300. Defendant's appeal involves the correctness of all the rulings to which we have called attention.
The regular drawing of the grand jury for the year 1905 was set aside because two grand jurors were drawn from the same township, and it is contended for appellant that, when this grand jury was set aside, the names drawn therefor should not have been returned to the grand jury box. This is the question raised by the challenge and by the motion to set aside the indictment. Reliance is placed upon section 342 of the Code, which provides that, when a precept for a grand jury shall be set aside, the court shall direct a sufficient number drawn and summoned in the manner above provided. Section 350 provides that all ballots drawn when the persons do not appear or do not serve shall be returned to the respective boxes from which drawn. Appellant contends that section 350 is not controlling, for that the words who "do not serve" have no reference to individual members who serve upon the serving jury for any term. It is insisted that the words quoted have reference to one who fails to obey a summons, or who appears and perhaps was excused. We do not agree with this contention. Here the entire panel was set aside at the first term after it was drawn, and none of the persons so drawn served except as they constituted a part of the panel drawn by order of court. But, whether this be true or not, there was no prejudicial error of which defendant may complain. None of the persons whose names were returned to the jury box were personally disqualified. They had been properly selected by the regularly constituted authorities, and their names were duly returned as grand jurors. The original drawing was set aside for the reasons named, and there was no valid objection to returning the names to the jury box as provided in section 350 of the Code.
II. When the new list of grand jurors was drawn, all appeared but one, who it appears had been excused by the judge the week before the seven who were to constitute the grand jury were drawn. One who was present when the grand jury was drawn was excused, and from the ten remaining the seven were drawn. This is said to be a ground for challenge and for setting aside the indictment under section 5240 of the Code, which provides that ...
To continue reading
Request your trial