State v. Ostby

• Decision Date: 12 March 1927
• Docket Number: No. 37364.,37364.
• Citation: 203 Iowa 333,212 N.W. 550
• Parties: STATE v. OSTBY.
• Court: Iowa Supreme Court

203 Iowa 333

212 N.W. 550

STATE

v.OSTBY.

No. 37364.

Supreme Court of Iowa.

March 12, 1927.

Appeal from District Court, Hancock County; M. H. Kepler, Judge.

On petition for rehearing. Petition overruled.

For former opinion, see 210 N. W. 934.T. J. Enright, of Manson, C. L. Nichols and Oliver Gorden, both of Minneapolis, Minn., and J. E. Williams, of Mason City, for appellant.

John Fletcher, Atty. Gen., and Neill Garrett, Asst. Atty. Gen., for the State.

FAVILLE, J.

Division I of the opinion filed in said cause on November 23, 1926, is amended by adding to said division the following:

[1] The appellant contends that said section of the statute is in violation of the Fifth Amendment to the federal Constitution. The Fifth Amendment is as follows:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.”

In State v. Wells, 46 Iowa, 662, we said:

“It is insisted that the ordinance is in conflict with article 5 of the Amendments of the Constitution of the United States, which provides that ‘no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury.’ It is sufficient to say, upon this point, that this provision of the federal Constitution is applicable alone to the exercise of power by the United States, and is not a restriction upon the legislative authority of the states. Barron v. Mayor, etc., of Baltimore, 7 Pet. 243 .”

[2] The Fifth Amendment of the federal Constitution is no limitation upon the power of the state to provide for prosecutions for infamous crimes without an indictment by a grand jury.

An amendment to the Constitution of the state, adopted in 1884, provides:

“The grand jury may consist of any number of members not less than five, nor more than fifteen, as the General Assembly may by law provide, or the General Assembly may provide for holding persons to answer for any criminal offense without the intervention of a Grand Jury.” Amendment 3.

The General Assembly has provided for holding persons to answer for a criminal offense without the intervention of a grand jury by county attorney's information.

Code 1924, § 13791, is not affected by the Fifth Amendment to the federal Constitution, and does not violate any of the provisions of the Constitution of this state.

The reporter will insert the foregoing at the proper place in the official publication of the opinion in this cause....