State v. Olson, 49158

• Decision Date: 12 November 1957
• Docket Number: No. 49158,49158
• Citation: 249 Iowa 536,86 N.W.2d 214
• Parties: STATE of Iowa, Appellee, v. Chriss M. OLSON, Appellant.
• Court: Iowa Supreme Court

Page 214

86 N.W.2d 214

249 Iowa 536

STATE of Iowa, Appellee, v. Chriss M. OLSON, Appellant.

No. 49158.

Supreme Court of Iowa.

Nov. 12, 1957.

As Modified on Denial of Rehearing Jan. 20, 1958.

Harris & Harris, Jefferson, and Page & Nash, Denison, for appellant.

Norman A. Erbe, Atty. Gen., Don C. Swanson and Hugh V. Faulkner, Asst. Attys. Gen., for appellee.

GARFIELD, Justice.

Defendant was a member of the Crawford county board of supervisors from 1937 until March, 1954, when he resigned following a heart attack. However he did not serve on the board from the fall of 1942 until December, 1943, while a member of the armed forces. The three board members also acted as trustees of the county drainage districts.

On July 16, 1954, defendant was indicted for the crime of conspiracy with Leonard J. Hassett and L. J. Gibson, in violation of section 719.1, Code 1950, I.C.A. Hassett and Gibson were county employees. Gibson died in January, 1953. The indictment charges defendant 'Did on or about the month of October, 1951, with fraudulent intent willingly and unlawfully conspire, combine and confederate with Leonard J. Hassett and L. J. Gibson to injure the property and funds owned by Boyer River Drainage Distrist No. 1 of Crawford County, Iowa, and with a fraudulent intent to injure the rights of members of said drainage district * * *, having an interest in said property and said funds of said drainage district, contrary to and in violation of Section 719.1, Code of Iowa, 1950, * * *.'

On June 11, 1956, defendant pleaded not guilty. Place of trial was changed to Greene county where trial was had in September. During the nearly 23 months between return of the indictment and entry of the plea there were filed and ruled upon different motions to set aside the indictment, motions to require bills of particulars and to strike all or parts of the bills that were furnished, and an amended demurrer to the indictment. Testimony was taken for four days upon submission of the first motion to set aside the indictment, apparently in an attempt to show bias and hostility toward defendant by the assistant county attorney and some of the grand jurors who returned the indictment. More than half of defendant's brief is devoted to alleged errors that arose before the main trial commenced.

Briefly the state contends defendant conspired with Hassett and Gibson to sell illegally to Boyer River Drainage District No. 1 a large quantity of jackstones at an excessive price for defendant's personal enrichment. A jackstone is made of reinforced concrete, in three parts, each about five inches square and five to six feet long, fastened together near one end to form a tripod. They are installed in watercourses to retard erosion, apparently along the banks were the current is swift.

Large quantities of jackstones were made by Gibson under the name B & H Materials Co., purchased by the supervisors and paid for with drainage warrants. Defendant furnished Gibson substantial sums which were used in the business and received substantial amounts from proceeds of warrants issued in payment for the jackstones. The state claims defendant was a partner in this illegal enterprise. Defendant testifies the sums he advanced Gibson were merely loans made in a desire to assist him and the amounts defendant received were in payment of the loans.

I. Error is assigned in overruling defendant's motion to set aside the indictment because it is said R. E. Franck, assistant county attorney, was an improper person present before the grand jury which returned the indictment. Code section 776.1, subsection 6, I.C.A. (all references are to the Code of 1954 and I.C.A. unless otherwise indicated), gives as a ground for setting aside an indictment that someone other than the grand jurors was present before it during the investigation 'except as required or permitted by law.'

On the county attorney's application the district court made an order appointing Mr. Franck assistant county attorney with authority to appear before the grand jury for the purpose of assisting in such investigation as the state attorney general and the county attorney may deem necessary and with authority to assist in such trial work as in the attorney general's judgment may be necessary. Later that same day the court, apparently on its own motion, made an order expunging the previous on as premature in that no one was then charged with a felony. The county attorney then filed a second application reciting that John Doe, Richard Roe and certain other persons had been charged with conspiracy to defraud Crawford County in the court of a named justice of the peace and assistance was needed to properly present such matters to the grand jury and to try such cases as may result from the investigation. The court made a second order appointing Mr. Franck assistant county attorney with authority like that conferred by the first order, after reciting that certain persons had been charged with a felony.

Defendant argues Code section 341.7, I.C.A. conferred upon the court the only power it had to appoint an assistant to the county attorney. The section provides: 'The county attorney may with the approval of a judge of the district court procure such assistants in the trial of a person charged with felony as he shall deem necessary * * *.' (Emphasis added.) It is said a grand jury investigation is not a trial and therefore the court was without power to authorize Mr. Franck to appear before the grand jury.

State v. Tyler, 122 Iowa 125, 127-130, 97 N.W. 983, Ladd, J., a conviction of first degree murder, is conclusive against this claim of error. It holds the district court has inherent power, independent of what is now section 341.7, to appoint a reputable attorney to appear before the grand jury to assist the county attorney in an investigation. State v. Kovolosky, 92 Iowa 498, 501, 61 N.W. 223, is an earlier decision which also recognizes the power of the district court to appoint an assistant to the county attorney who, like that officer, may appear before the grand jury.

State v. Coleman, 226 Iowa 968, 972, 285 N.W. 269, disposes of a contention like that urged by defendant here by saying since the county attorney may appear before the grand jury an attorney appointed as his assistant by the court, under what is now section 341.7, may also do so.

State v. Jones, 360 Mo. 437, 268 S.W. 83, 85, recognizes the inherent power of the court, independent of statute, to appoint a special prosecuting attorney when the regular prosecutor is disqualified.

We have not overlooked, but do not discuss, defendant's attempt to distinguish the Tyler and Coleman cases, supra. It will be impossible within the acceptable limits of an opinion to discuss all the many contentions able counsel have advanced.

Decisions which consider the effect of presence in the grand jury room of assistants to the prosecuting attorney are summarized in Annotation, 4 A.L.R.2d 392, 402-403, 409-410, and Note 33 L.R.A.,N.S., 568, 569-572.

II. There is no merit to defendant's claim the indictment should have been set aside on the ground Mr. Franck failed to qualify as an assistant to the county attorney by posting bond and taking an oath of office and was therefore improperly before the grand jury. It is argued Franck was a public officer required by Code section 64.2, I.C.A. to give bond.

State v. Tyler, supra, 122 Iowa 125, 129, 97 N.W. 983, 985, approves the appearance before the grand jury of an assistant county attorney appointed by the court although he takes no oath of office other than his oath as a practicing attorney and furnishes no bond. The opinion states: 'Attorneys are officers of the court, and the oath taken by them when admitted to practice is quite as full and complete as that of the county attorney. True, they execute no bond, but when acting as special counsel for the state their conduct is subject to review, and, should it be unbecoming as an officer of the court, a penalty may be imposed quite as severe as that nominated in the bond. Raymond v. People, (2 Colo.App. 329) 30 P. 504. The presence of such an officer before the grand jury under the direction of the court differs radically from that of a stranger, who is under no such restraint.'

Further, we are not prepared to hold that Franck's failure to take an oath of office or furnish bond, if it be assumed they were required, may be urged as a basis for setting aside the indictment. He was at least a de facto officer the regularity of whose acts may not be questioned on this ground in this collateral proceeding. State v. Bates, 23 Iowa 96, 98-99; State ex rel. Hartnett v. Powell, 101 Iowa 382, 386, 70 N.W. 592; Bremer County v. Schroeder, 200 Iowa 1285, 1287, 206 N.W. 303; State v. Central States Electric Co., 238 Iowa 801, 818, 28 N.W.2d 457, 466; Walker v. Sears, 245 Iowa 262, 266-267, 61 N.W.2d 729, 731.

III. There is likewise no merit to defendant's contention the indictment should have been set aside on the ground Assistant County Attorney Franck was so antagonistic toward defendant as to disqualify him from appearing before the grand jury.

When Mr. Franck was appointed assistant county attorney he was a director and president of the Crawford County Taxpayers League, formed about two years earlier for the purpose of obtaining information regarding public expenditures and like objects. Upon his appointment he resigned as president of the league but not as director. He had held these offices less than four months. The league had paid some money to an attorney and one or two investigators and some of those instrumental in it, including Franck, had conferred with the state attorney general and one or two of his assistants regarding their information and suspicions. The league was evidently suspicious of some of the conduct of the county supervisors. Mr. Franck's uncle by marriage and law partner was instrumental in forming the league.

Franck was a...