State v. O'Malley

• Decision Date: 25 October 1906
• Citation: 109 N.W. 491,132 Iowa 696
• Parties: STATE OF IOWA v. J. E. O'MALLEY, Appellant
• Court: Iowa Supreme Court

109 N.W. 491

132 Iowa 696

STATE OF IOWA v. J. E. O'MALLEY, Appellant

Supreme Court of Iowa, Des Moines

October 25, 1906

REHEARING DENIED, FRIDAY, JANUARY 18, 1907.

Appeal from Dallas District Court.--HON. JAMES D. GAMBLE, Judge.

THE defendant was convicted of keeping a liquor nuisance, and appeals.

Affirmed.

Cardell & Fahey, for appellant.

Chas W. Mullan, Attorney General, and Lawrence De Graff, Assistant Attorney General, for the State.

OPINION

SHERWIN, J.

The defendant moved to set aside the indictment for the reason that certain exhibits which were before the grand jury were not returned with the indictment and filed by the clerk of the court. It is undisputed that the county auditor, Lods identified the same exhibits on the trial, and that they were introduced in evidence. Code, section 5258, among other things, provides that, "when an indictment is found, all minutes and exhibits relating thereto shall be returned therewith and filed by the clerk of the court, and attached to the indictment." The provision requiring the return and filing of all exhibits was first enacted in 1897 as a part of said section of the Code, and, so far as we are advised, the question now under consideration has not before been considered or determined by us. Prior to its enactment we held in State v. Mullenhoff, 74 Iowa 271, 37 N.W. 329, that it was not necessary to set out documentary evidence, or note it, in the minutes of the evidence returned with the indictment. In State v. Boomer, 103 Iowa 106, 72 N.W. 424, decided in October, 1897, we followed the rule announced in the Mullenhoff case, saying, it is not necessary to return with the indictment documentary evidence which was before the grand jury. The Boomer case was tried below before section 5258 became a part of the law, although it was decided in this court thereafter; and it is not an authority on the precise question involved in this appeal. The requirement that all exhibits be returned with the indictment and filed by the clerk was manifestly intended to cure the defect in the statute theretofore existing, and to meet the decision in the Mullenhoff case. But, if this be true, it does not necessarily follow that the motion to set aside the indictment should have been sustained. Aside from the question whether the statute is mandatory, or directory only, section 5319 of the Code enumerates the grounds on which an indictment shall be set aside on motion, and we have repeatedly held that an indictment will not be set aside on grounds other than those so enumerated. The failure to file exhibits is not made a ground for setting aside the indictment. True, the statute provides that it shall be set aside when the minutes of the evidence of the witnesses examined by the grand jury are not returned therewith; but we have held that documentary evidence is not the evidence meant thereby. State v. Hurd, 101 Iowa 391, 70 N.W. 613.

Further objection is based on the court's refusal to set aside the indictment because the minutes of the testimony of one of the witnesses before the grand jury was not signed by him. What we have already said relative to the statutory grounds for setting aside an indictment applies to this contention for it is not contended that the minutes of his testimony returned and filed are not correct. In addition to this however, we think the requirement that the minutes be signed by the witness directory only. The case of State v. Hurd, 101 Iowa 391, 70 N.W. 613, is analogous to this on the point. There the minutes of the testimony of the witnesses before the grand jury were taken by the clerk of that body, and then taken and...