State v. Pierce

• Decision Date: 08 May 1894
• Citation: 90 Iowa 506,58 N.W. 891
• Parties: STATE v. PIERCE.
• Court: Iowa Supreme Court

90 Iowa 506

58 N.W. 891

STATE

v.PIERCE.

Supreme Court of Iowa.

May 8, 1894.

Appeal from district court, Warren county; J. H. Henderson, Judge.

The defendant was indicted in the district court of Polk county for the willful, deliberate, and premeditated murder of E. H. Wishard. The venue of the case was changed to the district court of Warren county, where a trial was had which resulted in a verdict and judgment for manslaughter. The defendant appeals. Affirmed.A. A. Haskins, for appellant.

John Y. Stone, Atty. Gen., Thos. A. Cheshire, and W. A. Spurrier, for the State.

ROTHROCK, J.

1. There is no controversy as to the fact that E. H. Wishard is dead, and that he was killed by the defendant. The defendant was arrested, and a preliminary hearing was had before a magistrate, and he was held to abide the action of the grand jury at the next term of the district court. When the grand jury was called the defendant interposed the following challenge to the panel: “Mr. Haskins: The defendant challenges the array of the panel for the reason that section 236 of the Code provides that a county auditor shall, on the first Monday in September in each year, apportion the number of grand and trial jurors to be selected from each election precinct, as nearly as practicable according to the number of votes polled therein at the last general election, and deliver a statement thereof to the sheriff, for the reason the election precincts at the election prior to the selection of the present grand and trial jury were different,--not less than two townships in the county entirely abolished in the mean time,--and the grand jury now before the court, and now in the box, were selected from the changed precincts, wherein no election had ever been held prior to that election. That is all I care to do.” The testimony of the auditor of the county was taken as to the manner in which the names of electors were selected from which to draw the grand and petit jurors for the year 1891. So far as we have been able to discover from the record in this case, no other challenge to the grand jury was interposed by the defendant, or in his behalf, except that above set out. What was done in the way of objection or challenge to the grand jury is set out in the argument of appellant's counsel, as follows: “The first serious objection of which we complain is as to the legality of the grand jury which found the indictment. When summoned before the grand jury to show cause why they should not return an indictment against him, the defendant challenged the panel of the grand jury because of the fact that the grand jury for the year 1891, for Polk county, had been drawn from election precincts in the city of Des Moines, and in country townships which were not in existence at the annual election in 1889, when the names of the grand jurors for 1891 were returned by the judges of election. The same objection to the grand jury, and to all of the proceedings subsequent to the indictment, were again raised at every stage of the proceedings, to wit, by motion to quash the indictment, by objection to the testimony, by motion at the close of the evidence, the instructions to the trial jury to return the verdict for the defendant, and by the motion in arrest of judgment and for a new trial, all of which objections will be argued at this time.” We have set out all that we can find in the record pertaining to the challenging of the grand jury, because an elaborate argument is presented by counsel upon the alleged unconstitutionality of certain acts of the legislature enlarging the corporate limits of the city of Des Moines, and providing for changing the voting precincts therein. It will be observed that there is neither an express nor implied claim in the record that the law under which the voting precincts were changed was unconstitutional, or that the changes in the precincts were not lawfully made. The challenge to the panel was because the jurors were selected from the precincts, as changed, in which no election had been held prior to the time fixed for selecting names of persons to be drawn as jurors for the year in which the indictment was found. The statute explicitly provides that a person held to answer for an offense cannot be allowed to challenge the grand jury, or any individual juror, after they are sworn. Code, § 4266. This court has repeatedly held that a defendant held to answer has an opportunity to challenge the grand jury before it is sworn, and that, if he fail to do so then, he cannot afterwards make objection. State v. Ingalls, 17 Iowa, 8;State v. Hinkle, 6 Iowa, 380;State v. Howard, 10 Iowa, 101;State v. Hart, 29 Iowa, 268;State v. Gibbs, 39 Iowa, 318. It is wholly immaterial what questions were presented to the court touching the illegality of the changes in the extent or number of the election precincts. No such question was presented by the record, and it would be manifestly improper to allow the defendant to make such objection now. The law imperatively requires that all objections to the grand jury must be made when it is impaneled and sworn. It would be absurd to hold that a person held to answer could present part of his objections, and withhold others, to be used in motions to quash the indictment and in arrest of judgment.

2. We will now consider the question presented as to the manner in which the names of the persons were selected from which to draw the grand jury. Section 234 of the Code is as follows: “Two jury lists, one consisting of seventy-five persons to serve as grand jurors, and one...