State v. Miller

• Decision Date: 01 October 1895
• Parties: STATE v. MILLER.
• Court: Iowa Supreme Court

95 Iowa 368

64 N.W. 288

STATE

v.MILLER.

Supreme Court of Iowa.

Oct. 1, 1895.

Appeal from district court, Wapello county; H. C. Traverse and E. L. Burton, Judges.

The defendant was convicted of the crime of seduction, and from the judgment, which required him to pay a fine of $500 and costs, and to be imprisoned in the county jail one day, he appeals. Affirmed.W. W. Cory, W. H. C. Jaques, and A. C. Steck, for appellant.

Milton Remley, Atty. Gen., and Jesse A. Miller, for the State.

ROBINSON, J.

The indictment on which the defendant was tried was marked “A true bill,” signed by the foreman of the grand jury, and duly filed. Accompanying it were minutes of the testimony of five witnesses who were examined before the grand jury. The defendant was arraigned, and pleaded not guilty. That plea was afterwards withdrawn, and a motion was filed by the defendant to set aside the indictment upon grounds stated as follows: “(1) The names of all the witnesses who gave material evidence in this case before the grand jury are not indorsed on the indictment as required by law, as shown by the attached affidavit. (2) The minutes of the evidence of all the witnesses who gave material evidence in this case before the grand jury are not attached to the indictment, nor returned therewith, nor filed in the office of the clerk of the district court, nor returned thereto, as required by law, as will fully appear by the indictment and the annexed affidavit. (3) The clerk of the grand jury by whom the indictment was found was a regular practicing attorney of this court, and while acting as said clerk, and taking the evidence in this case, told and advised the grand jury, of which he was not a member, that they had sufficient evidence to warrant finding an indictment against the defendant, and that the grand jury acted upon and under said advice in finding the same, and he also said that the prosecuting witness was sufficiently corroborated to warrant the finding of an indictment.” With the motion was filed the affidavit of a member of the grand jury which returned the indictment, and an admission in writing by the county attorney. The affidavit stated that each of three witnesses, who were named, testified before the grand jury, and gave material evidence, and that the evidence thus given was considered by the grand jury; that the clerk of the grand jury was a practicing attorney, and a member of the bar of Wapello county; that he conducted the examination of witnesses in part, consulted the private attorney of the prosecuting witness, and advised the grand jury that they had corroborating evidence sufficient to warrant the finding of an indictment. The admission of the county attorney was to the effect that the three witnesses named gave material testimony before the grand jury, none of which was returned with the indictment. Counter affidavits were filed by the state, and additional affidavits were filed by the defendant.

It is a fact not disputed that none of the names of the three witnesses in question were indorsed on the indictment, and that no minutes of their testimony were returned with it. The affidavits show that the clerk of the grand jury was a practicing attorney, that he took part to some extent in examining witnesses, and that he had an unfriendly feeling for the defendant. There is much conflict in the affidavits, and we are of the opinion that, if they were competent evidence, the district court was authorized to find that the clerk did not take any part in the deliberations of the grand jury, and did not advise them as to the sufficiency of the evidence to authorize an indictment; that he consulted the private attorney of the prosecutrix, but only to ascertain if all the witnesses had been examined; that the part he took in the examination was by request of the foreman, and each member of the grand jury asked such questions of the witnesses as he wished to ask. The motion to set aside the indictment was overruled, and the defendant, after excepting to the ruling, renewed his plea of not guilty. There was a trial by jury, a verdict of guilty as charged, a motion in arrest of judgment, and one for a new trial, which were overruled, and judgment as stated.

The appellant contends that the district court erred in not sustaining the motion to set aside the indictment. Section 4293 of the Code, as amended by chapter 130 of the Acts of the 18th General Assembly, provides as follows: “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. * * *” Section 4337 of the Code contains the following: “The motion to set aside the indictment can be made by the defendant...