State v. Pell

• Decision Date: 13 January 1909
• Citation: 119 N.W. 154,140 Iowa 655
• Parties: STATE v. PELL.
• Court: Iowa Supreme Court

140 Iowa 655

119 N.W. 154

STATE

v.PELL.

Supreme Court of Iowa.

Jan. 13, 1909.

Appeal from District Court, Marshall County; C. B. Bradshaw, Judge.

The defendant was indicted and put on trial for murder in the first degree, but the court directed the jury that under the evidence he could not be convicted of a higher offense than murder in the second degree. The jury found him guilty of murder in that degree, and he was sentenced to imprisonment in the penitentiary for a term of 25 years. From this sentence he appeals. Affirmed.Theo. F. Bradford, for appellant.

H. W. Byers, Atty. Gen., and Chas. W. Lyon, Asst. Atty. Gen., for the State.

McCLAIN, J.

1. The panel of the grand jury from which were drawn the names of the grand jurors finding the indictment against defendant was selected from a grand jury list made up by the board of supervisors under direction of the court, in accordance with the provisions of Acts 32d Gen. Assem. p. 10, c. 12 (Code Supp. 1907, §§ 337a-337d). At various stages of the proceeding counsel for appellant raised objections to the validity of the drawing of this grand jury, and to the indictment found by it on account of the method of selecting the panel, and we first give attention briefly to these various grounds of objection. The statute above referred to was passed as an emergency measure to avoid difficulties which had arisen in several counties of the state by reason of the action of the court in holding the grand and petit jury lists not to have been returned by the judge of election, as provided in Code, § 337. The provisions of the act are, however, general in their nature, for they are made applicable, not only to difficulties already existing, but to those arising in the future from irregularities in the returning of such lists, or other contingencies rendering it impracticable to strictly follow the provisions of the law as it previously stood. There is no merit, therefore, in the contention that the statute is unconstitutional as applied to one to be charged with a crime already committed, for the whole matter is one of procedure, and in general a statute regulating procedure is not unconstitutional as applied to the prosecution for a crime already committed, unless it renders it more difficult for the accused to defend himself against the charge. There is not the slightest suggestion that the statute deprived defendant of any advantage which he would otherwise have had. It is not to be assumed that, because the grand jury list was set aside on account of irregularities, there would have been no lawful grand jury to have investigated the charge against defendant until after the statute of limitations for the offense charged had expired. Indeed, as the offense charged was murder, no limitation would have barred a finding of an indictment against defendant. The statute related merely to the method of securing a grand jury which might find a lawful indictment, and it was therefore not open to objection as being ex post facto. It is wholly immaterial for present purposes to discuss the question whether the court had properly set aside the grand jury list furnished by the judges of election, and directed the board of supervisors to prepare another grand jury list under the statutory provisions. The situation contemplated by the statute had arisen, and the statute itself was therefore applicable. Defendant had no vested right in any particular grand jury list, and cannot complain of an indictment found by a grand jury whose members were chosen from a list prepared as provided by law.

It is said, however, that the board of supervisors did not comply with the statute in that its selection of names for the grand jury list was not limited to “the qualified electors from the several precincts, as shown by the poll lists of the last preceding general election,” as specified in section 4 of the act. But no competent showing of objection to the grand jury on this ground was made. It is true that, in additional objections to the grand jury panel interposed for defendant, it is recited that the board of supervisors placed upon the list the names of 20 persons not appearing on the poll lists of the various precincts for the preceding year, but there was not the slightest effort made to substantiate this allegation. No affidavits supporting the allegation that names placed by the board of supervisors on the grand jury list were not found on the poll lists for the preceding year were offered, nor was there any showing whatever of an effort to secure such affidavits, or to secure witnesses to prove the fact. No doubt, if the poll lists themselves had been offered in evidence to support the allegation, they might have been received and considered by the court, but no poll lists were offered. With reference to another objection, to be hereafter considered, the court was asked to summon the members of the board of supervisors to appear and testify as to the method of selecting such list; but, without some showing that affidavits of the supervisors could not have been procured, it was not the duty of the court to suspend proceedings indefinitely until the members of the board might be brought before the court for examination. If the allegation made in the objection that certain specified names on the grand jury list were not found on the poll lists was based on any investigation, the person making the investigation could easily have supported it by an affidavit, but no such affidavit was offered. So far as the present objection, then, is concerned, we have nothing but the unsupported statement in defendant's motion that certain names found on the grand jury list selected by the board of supervisors did not appear on the poll lists of the various precincts for the preceding year; and the court was under no obligation to sustain a challenge to the panel on this naked and unsupported allegation. Defendant was afforded every opportunity contemplated by the statute for supporting his motion to set aside the panel of the grand jury on account of irregularity or illegality in the selection, drawing, or summoning of the members of the grand jury; and, having made no showing of such irregularity or illegality, his challenge to the panel was properly overruled.

Another ground of challenge was that about 300 names of duly qualified electors of the county were not considered by the board of supervisors in making up the grand jury list, for the insufficient reason that the persons whose names were not thus considered were persons who might under the provisions of Code, § 333, have claimed exemption from grand jury service. It may be true that such persons would have been competent grand jurors if selected, and might properly have served had they not seen fit to ask exemption from such service; but, if the list was in fact made up from persons competent to serve as grand jurors, and there was no showing of prejudice to defendant in the exclusion of any particular class of persons, the defendant's objection should not be entertained. It is surely not competent to defeat the indictment by showing that some particular persons, whose names might properly have been considered in making up the grand jury list, were in fact not taken into account by the board in making such list. So long as no names are placed on the grand jury list which could not have been properly included, and no classes of persons are excluded to defendant's prejudice, there is at least a substantial compliance with the statute, and this is all that can be required. State v. Carney, 20 Iowa, 82;State v. Brandt, 41 Iowa, 593;State v. Edgerton, 100 Iowa, 63, 69 N. W. 280.

The general statute relating to the selection of the grand jury list provides that not more than 1 person shall be drawn as grand juror from any civil township, except when there are less than 12 civil townships in the county. Code, § 339. It is contended that this provision renders the entire statute relating to the formation of grand juries unconstitutional, for the reason that the townships are not represented on the grand jury in proportion to their population. This objection seems to us, on the face of it, to be so manifestly absurd that it is not entitled to serious consideration; and, as counsel for defendant in his elaborate argument states no authority whatever in support of his contention, we decline to enter upon this field of speculative discussion. The statutory purpose in requiring the grand jurors to be selected from different portions of the county was certainly not, as assumed by counsel, to give to one charged with crime the opportunity of having one or more of the grand jurors drawn from his particular locality, in order that his general character and standing in the community might be taken into account in determining whether an indictment should be returned against him. If the grand jurors are selected in accordance with law from the body of the county, defendant has no constitutional right to complain.

2. Similar objections to those already considered with reference to the grand jury list are made in argument, as against the selection of the list of names from which the trial jurors were drawn, but here again there was an entire failure on the part of counsel for defendant to make any showing whatever in support of his objections, and they were therefore properly overruled. When the jurors were examined as to their qualifications, each was asked whether he was a qualified elector, and objection was interposed that he was not asked whether he had voted at the previous election; that is, the election for which the poll lists were made, from which, as contended for defendant, the names for the jury list should have been selected by the board of supervisors. As now appears from counsel's argument,...