State v. Ruthven
| Decision Date | 20 April 1882 |
| Parties | THE STATE v. RUTHVEN |
| Court | Iowa Supreme Court |
Appeal from Clay District Court.
THE defendant was indicted and tried for, and convicted of, the crime of compounding a felony, namely, a grand larceny. He appeals.
AFFIRMED.
P. O Cassidy, for appellant.
J. M Tolliver and Smith McPherson, Attorney-general, for the State.
I.
The defendant moved to set aside the indictment upon the ground that the grand jury was not selected and drawn as required by law. The evidence taken upon this motion shows that some of the townships returned more names of electors to serve as grand jurors, and some less than the number apportioned to their respective precincts. One township that was directed to send up twenty-five names returned thirty-four one that was directed to send up six names returned twelve, and one that was directed to send up nine names returned eight. Upon three of the townships no notice was served by the sheriff, as provided in section 237 of the Code. One of these townships sent up two names, another twelve, and the other fifteen. The number of names sent up was one hundred and nine, from which the board of canvassers selected seventy-two, to act as grand jurors during the year. The State filed an amended abstract showing that when the cause was reached the defendant appeared by attorney and filed a motion to quash the indictment, which motion the State confessed, whereupon the indictment was quashed, and the matter was referred to the grand jury for further consideration, and on the same day the grand jury returned an indictment charging the defendant with the crime of compounding a felony. The appellant denied the correctness of the amended abstract. The transcript shows it to be correct in every particular. The defendant was in court, at least by attorney, when the matter was remanded to the grand jury. He should then have objected to the panel, if he had any objection to make. By failing to object then, he waived his right to do so subsequently. The State of Iowa v. Harris & Folsom, 38 Iowa 242.
II. The defendant was indicted under sections 3951-3952, of the Code. The evidence shows that the defendant was deputy sheriff. It is insisted that he should have been indicted under section 3948 of the Code. It may be that the defendant, being a deputy sheriff, violated the provisions of section 3948, and was amenable thereto. But the mere fact that the defendant was an officer, furnishes no reason why he should be allowed immunity from the higher punishment prescribed in sections 3951-3952.
III. The defense having rested, the State called in rebuttal, one Thomas W. Berry. The defendant objected to the witness, because his name was not on the back of the indictment. The objection was overruled. This action of the court was right. The State, in rebuttal, may call witnesses whose names are not indorsed upon the back of the indictment. The State v. Parish, 22 Iowa 284.
IV. The evidence tends to show that one George T. Hanson had stolen from one Gideon Ruthven, the brother of the defendant sixty-five dollars; that the defendant had a warrant for the arrest of George T. Hanson, and that he procured from George Hanson a note for $ 100, secured by mortgage, to Gideon Ruthven, agreeing in consideration of said note not to arrest George T. Hanson, and that neither he, nor his brother, would prosecute him for the offense. The defendant asked the court to instruct, that if the defendant received no benefit or consideration running to himself, or that he received no part of the note, he is not guilty. This instruction was properly refused. If the defendant corruptly exacted a...
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