State v. Lewis

• Citation: 65 N.W. 295,96 Iowa 286
• Parties: STATE v. LEWIS ET AL.
• Decision Date: 11 December 1895
• Court: United States State Supreme Court of Iowa

96 Iowa 286

65 N.W. 295

STATE

v.LEWIS ET AL.

Supreme Court of Iowa.

Dec. 11, 1895.

Appeal from district court, Plymouth county; Scott M. Ladd, Judge.

The defendant Atlee Hart was jointly indicted with J. L. Lewis upon a charge of maliciously and feloniously threatening to accuse Daniel T. Gilman and D. T. Hedges with the crime of adultery, with the intention to extort from said Gilman and Hedges a large sum of money, to wit, the sum of $1,200. The indictment was found and presented in Woodbury county. The defendant Hart demanded a separate trial, and on his application the venue was changed to Plymouth county, where he was tried and convicted, and the case is here upon his appeal from the sentence or judgment pronounced upon a verdict of guilty. Affirmed.Lewis, Holmes & Beardsley and M. C. Jay, for appellant.

Milton Remley, Atty. Gen., T. F. Bevington, Co. Atty. Woodbury Co., P. Farrell, Co. Atty. Plymouth Co., and George W. Argo, for the State.

ROTHROCK, J.

1. It is necessary to make a statement of facts preliminary to the finding of the indictment, to the end that some of the questions presented by the appeal may be understood. It appears that in the summer and fall of the year 1892 there were sold and circulated in Sioux City a large number of copies of a weekly newspaper called the “Sunday Sun.” The paper was printed in the city of Chicago, and large numbers were sent to Sioux City for sale. The defendant Lewis was in charge of the circulation in Sioux City. He had an office or place of business, and he held himself out as the local editor; that is, he had charge of the preparation and furnishing the local items or articles which it was thought would cause a demand for the papers at that place. The paper purported to be published in the interest of good morals, and to correct and reform the character and standing of the people in the localities where it was put in circulation. It is unnecessary to state more in the way of facts, in this connection, than that this whole record shows that the object of the publication was to extort money from prominent citizens, by means of threats and covert insinuations of the purpose to expose their crimes and shortcomings in said newspaper. In some cases knowledge was brought to the victims selected, of the purpose to publicly expose them, by squibs and innuendoes in the paper. In other cases the purpose was made manifest by actual notice of the proposed exposure. The result was that many of the persons thus threatened paid considerable sums of money in order to suppress the proposed publication, and thus save themselves from public obloquy and disgrace. At the time of the publication and sale of the newspaper, the appellant, Hart, was a resident of Dakota City, in Nebraska, some six miles from Sioux City. He was not ostensibly connected with Lewis in the sale and distribution of the papers. The ground upon which the prosecution claimed that he was a guilty party in the enterprise was that the facts show that he was the hypocrite or go-between, who made settlements with the victims, and that, while he was sharing the profits of the business, he did so by pretending that he was actuated by pure friendship for the persons threatened, and without recompense or reward. The defendant Lewis was arrested on several warrants issued by justices of the peace. The appellant, Hart, was also arrested on two warrants; but his cases were continued, and when the grand jury which found the indictment in this case, as well as several other indictments against Lewis, and one or more indictments against another party, was organized, there had been no preliminary examination on the prosecutions against Hart. The grand jury convened on the 19th day of January, 1893, and proceeded to investigate the charges of extortion against Lewis. A subpœna was issued for Hart to appear forthwith before the grand jury, that he might be examined as a witness. There is some claim made that he was arrested on the subpœna, and many other statements are made as to hurrying him into the jury room against his consent. This is disputed, and, as we think what occurred before the grand jury is no part of the record in this case, we will not undertake to settle that dispute. It is conceded, however, that Hart asked to consult his attorneys, and was allowed to do so, and the grand jury then proceeded to examine him as a witness. He refused to answer any questions touching the charges against Lewis. Section 4287 of the Code is as follows: “When a witness under examination before the grand jury refuses to testify or to answer a question put to him by the grand jury, the grand jury shall proceed with the witness into the presence of the court and the foreman shall then distinctly state to the court the refusal of the witness, and if the court upon hearing the witness shall decide that he is bound to testify or answer the questions propounded he shall inquire of the witness if he persists in his refusal, and if he does shall proceed with him as in cases of similar refusal in open court.” When appellant refused to answer questions, he was taken before the court, as required by this statute. It is not an extravagant statement to say that the proceedings before the court were such as probably never before occurred in a court of justice. The questions were propounded to the witness, and he refused to answer. Counsel for the state examined the witness for a time. Counsel for the witness asked for an order on the justices of the peace to bring in their dockets to show up the cases on preliminary examination, and the order was made, and the justices of the peace were examined in reference thereto. The witness continued his refusal to answer, but later on he made answer to the questions, in these words, “I refuse to answer because the answer might tend to expose me to a criminal charge, and because the answer might constitute a link in the chain of evidence that would subject me to a criminal charge.” After a lengthy examination, which was interspersed with objections and arguments,--the counsel for the witness contending that the state had no right to examine the witness before the grand jury, or to require him to appear to testify to any fact in connection with the Sunday Sun publication, and counsel for the state contending that the witness should be compelled to testify to all facts which would not tend to criminate him,--the matter was concluded, and the court decided that under the facts the witness should return to the grand jury for further examination. In the course of the decision the court used this language: “As I understand, any man may be called before the grand jury in any case, and may be asked any question which, in the judgment of the grand jury, is pertinent to the matter under investigation. It is the right of the grand jury. It is the right of the party called, when called and questioned, to claim his privilege, and refuse to answer because the answer would tend to criminate him. Now, if he refuses to answer on these grounds, unless the court is satisfied that he is mistaken as to that, I think the court ought to excuse him from answering, and in this case the ruling of the court will be that the witness is excused from answering, in view of the record as it now stands.” There was surely no just ground of complaint because the court directed the witness to return for further examination before the jury. He was fully instructed as to his rights, and it would have been an unwarranted exercise of judicial power to direct the grand jury that they should not proceed with a proper examination of the witness.

2. The grand jury returned to the jury room, and the witness was further examined. Several indictments were found against the parties engaged in the Sunday Sun enterprise. Hart's name was not indorsed as a witness on any of the indictments, and no minutes of his evidence were returned by the grand jury to the court. After the filing of the indictments, the appellant filed a motion asking that the testimony of appellant taken before the grand jury by the stenographic reporter who was appointed clerk to the grand jury, during said investigation, be attached and made part of the record in the cause. This motion was overruled. We think this ruling was correct. The examination of the witness before the grand jury is no part of the record of the court. The law requires that when an indictment is found the names of all witnesses on whose evidence it is found must be indorsed thereon, before it is presented to the court, and the minutes of the evidence of such witnesses must be presented with the indictment to the court, and filed by the clerk of the court, and remain in his office as a record. Code, § 4293. As we have said, Hart's name was not indorsed on the indictment, and the minutes of his evidence were not returned. They were no more a part of the record than any other evidence which the grand jury did not think of sufficient importance to return as part of the evidence upon which the indictment was found. Notwithstanding the refusal to make the stenographic report of record, the counsel for appellant, assuming that it is of record, because it was presented with the motion which was overruled, claims that the examination of the defendant as a witness is ground for setting aside the indictment. It is true that the statute (Code, § 4337) provides that the indictment must be set aside “when the names of all the witnesses examined before the grand jury are not indorsed thereon; when the minutes of the evidence of the witness examined before the grand jury are not returned therewith.” But this does not require that the names of witnesses...