State v. Manley

• Decision Date: 08 January 1924
• Docket Number: No. 35760.,35760.
• Citation: 197 Iowa 46,196 N.W. 724
• Parties: STATE v. MANLEY.
• Court: Iowa Supreme Court

197 Iowa 46

196 N.W. 724

STATE

v.MANLEY.

No. 35760.

Supreme Court of Iowa.

Jan. 8, 1924.

Appeal from District Court, Linn County; Atherton B. Clark, Judge.

Defendant was indicted under section 4775a, Code Supplement, for failing to provide for his minor children. Upon a verdict of guilty, judgment was pronounced, from which he appeals. Affirmed.E. J. Dahms and E. E. Collins, both of Cedar Rapids, for appellant.

Ben J. Gibson, Atty. Gen., Herbert A. Huff, Asst. Atty. Gen., and W. J. Barngrover, Co. Atty., and H. R. Churchill, both of Cedar Rapids, for the State.

VERMILION, J.

The defendant was convicted of the crime of abandoning and failing to provide for his minor children, as defined by section 4775a, Code Supplement. He complains of the overruling of his motion to quash the indictment, on the ground that incompetent evidence was received by the grand jury. Attached to the indictment is a minute of the testimony of Katherine Ewing, who was a witness before that body. It appears she was general superintendent of the Social Welfare League and overseer of the poor of Cedar Rapids, As shown by the minute of her testimony, she testified to some facts that, so far as appears, were learned by personal observation, to some that partook of the nature of conclusions, and to other matters that were plainly hearsay. The mother of the children, the divorced wife of the defendant, was also before the grand jury, and testified to facts that fully support the charge in the indictment.

[1] The refusal of the court to set aside the indictment was, it is said, in violation of the rights guaranteed defendant under sections 1, 6, 10, and 19 of article 1 of the Constitution of the state and the Fifth and Fourteenth Amendments to the federal Constitution. In what manner it is claimed the ruling on the motion violated the defendant's rights under these numerous constitutional provisions is not in all respects clear. The chief contention, however, as we understand it, is that the court has an inherent power to set aside an indictment on other grounds than those enumerated in the statute; that to hold otherwise would be to put a construction upon the statute that would render it obnoxious to constitutional provisions. Numerous authorities are cited in support of this proposition, some of which will later be referred to. The proposition might, for the mere sake of argument, be conceded without aiding the defendant, though this court has for many years adhered to the rule that an indictment can only be set aside on grounds enumerated in the statute. State v. Tucker, 20 Iowa, 508;State v. Morris, 36 Iowa, 272;State v. Smith, 74 Iowa, 580, 38 N. W. 492;State v. De Groate, 122 Iowa, 661, 98 N. W. 495;State v. Frost, 95 Iowa, 448, 64 N. W. 401. See, also, U. S. v. Cutler, 5 Utah, 608, 19 Pac. 145. The fact that the grand jury received incompetent evidence, or even acted on insufficient evidence, is not one of the grounds for setting it aside found in the statute. Code, § 5319.

[2] The power and authority, or even the duty in a proper case, to do a thing may exist, but it should be exercised only when the circumstances require it. If it be true, as insisted by counsel, that the court possesses an inherent power to set aside an indictment for causes not found in the statute, which no legislative act can constitutionally take away, still, if the situation of the defendant does not call for the exercise of such a power, no constitutional right of his has been abridged by the failure to exercise it. See People v. Glen, 173 N. Y. 395, 66 N. E. 112, and People v. Sexton, 187 N. Y. 495, 80 N. E. 398, 116 Am. St. Rep. 621, cited by appellant. In addition to those cited above, the following cases hold that the fact that incompetent evidence was presented to the grand jury is not a ground for setting aside the indictment: State v. Fowler, 52 Iowa, 103, 2 N. W. 983;State v. Shepherd, 129 Iowa, 705, 106 N. W. 190;McGregor v. U. S., 134 Fed. 187, 69 C. C. A. 477. The reasons for this, aside from the statute, are many and obvious. When one of several witnesses is incompetent, it cannot be shown what weight, if any, was given to his testimony by the grand jury; the law does not contemplate a strictly judicial trial before that body; whether witnesses are competent is often a difficult question of law, which grand juries usually have not the learning or experience to decide; the indictment is but an accusation upon which a trial may be had where all the rights of the defendant respecting the competency of the proof against him are fully protected. As said in the McGregor Case, supra, a case cited by appellant:

“It would be subversive of our criminal procedure, and destructive of the rules formulated to promote the due administration of justice, to establish a practice under which indictments might be quashed because of the consideration by the grand jury of the improper testimony given by one witness among many.”

In another case upon appellants' brief, U. S. v. Farrington (D. C.) 5 Fed. 343, where an indictment was set aside, this pertinent language is found:

“It is not intended to suggest that, whenever incompetent testimony is received by a grand jury, its reception is such error or irregularity as to vitiate their finding, nor to hold that the evidence upon which an indictment is found shall be such as the court would regard as making out a prima facie case against the accused. It is not the province of the court to sit in review of the investigations of a grand jury as upon the review of a trial when error is alleged. * * *”

Again, in People v. Sexton, supra, it is said:

“The fact that some incompetent evidence was received in connection with competent evidence, or an incompetent witness examined, is not ground for quashing the indictment, for these errors may be corrected upon the trial.”

[3] Appellant further contends that his conviction and resulting imprisonment were in violation of the above-mentioned constitutional provisions. The claim, in addition to the question discussed above, is based on the situation disclosed by the evidence that the mother of his children had been divorced from appellant, and in the decree had been awarded the care and custody of the children, and $15 per month for the support of herself and children. The constitutional provision, found in section 6 above, providing that all laws of a general nature shall have a uniform operation, and that privileges or immunities shall not be granted to any citizen or class, which, upon the same terms, shall not equally belong to all, is, obviously, not violated by the enforcement of a criminal statute operating equally upon all persons who are in a position to and do violate it. State v. McGuire, 183 Iowa, 927, 167 N. W. 592.

[4][5][6] The contention that section 19, prohibiting imprisonment for debt, has been violated, is based on the assumption that the defendant's conviction and punishment is for the failure to pay the amount adjudged against him for the support of his children in the divorce decree. This assumption is entirely unwarranted. The common-law liability of a father to support his children is not affected by the fact that he and the mother are divorced. Debrot v. Marion County, 164 Iowa, 208, 145 N. W. 467, and cases cited. See, also, Davies v. Rutherford, 195 Iowa, 635, 191 N. W. 794;Boozel v. Boozel, 193 Iowa, 78, 185 N. W. 85;State v. Langford, 90 Or. 251, 176 Pac. 197;People v. Schlott, 162 Cal. 347, 122 Pac. 846;State v. Miller, 111 Kan. 231, 206 Pac. 744, 22 A. L. R. 788;King v. State, 12 Ga. App. 482, 77 S. E. 651. The statute under which this indictment is found provides, so far as material to the present inquiry, that every person who shall without good cause abandon his or her legitimate or legally adopted child or children under the age of 16 years, leaving such child or children in a destitute condition, or shall without good cause willfully neglect or refuse to provide for such child or children, they being in a destitute condition, shall be punished. The indictment charges that the defendant “did willfully and without good cause abandon his legitimate children (naming them), all under the age of 16 years, and willfully and feloniously did refuse to provide for said children, they, the said children being then and there in a destitute condition.” The statute does not make it a crime to fail to pay a judgment against him for the support of his children. The indictment does not charge him with the failure to pay the amount so awarded. Under the authorities cited, the amount the decree provided he should pay for the support of his former wife...