State v. Shepherd

• Decision Date: 15 February 1906
• Citation: 106 N.W. 190,129 Iowa 705
• Parties: STATE v. SHEPHERD.
• Court: Iowa Supreme Court

129 Iowa 705

106 N.W. 190

STATE

v.SHEPHERD.

Supreme Court of Iowa.

Feb. 15, 1906.

Appeal from District Court, Jefferson County; C. W. Vermillion, Judge.

The defendant was indicted for the crime of murder, and was convicted of the crime of manslaughter. From the judgment entered on the verdict, he appeals. Affirmed.P. J. Hanley and E. F. Simmons, for appellant.

Chas. W. Mullan, Atty. Gen., and Lawrence De Graff, Asst. Atty. Gen., for the State.

BISHOP, J.

1. Upon being called upon to plead, the defendant filed a motion to quash the indictment; the grounds therefor being “that another person other than the grand jury was present before them during their investigation of the charge in this indictment, in that the said grand jury summoned defendant and required him to appear before them and testify under oath as a witness against himself, and without informing him of his right not to answer.” In his affidavit attached to the motion, defendant says that while he was in jail on the instant charge awaiting the action of the grand jury he was taken by a bailiff before the grand jury and sworn and examined; that he did not request such action, and supposed he was compelled by law to answer the questions put to him. Also is attached the affidavit of the bailiff, saying that his action was by direction of the grand jury. To the indictment as returned was attached minutes of evidence purporting to be given by Dan Shepherd, and his name is indorsed upon the back of the indictment. The motion was overruled, and, based thereon, defendant contends for error. In support of the contention for error, counsel rely upon paragraph 4 of section 5319, and section 5484, of the Code. The former provides that a “motion to set aside the indictment can be filed before a plea is entered by the defendant when any person other than the grand jurors are present before the grand jury during the investigation of the charge, except as required or permitted by law.” The latter provides that “defendants in all criminal proceedings shall be competent witnesses in their own behalf, but cannot be called as witnesses by the state,” etc. It is the argument that, as defendant was being held to answer for the crime under investigation, he was in effect compelled to be a witness against himself; that as the state had no right to use him as a witness in any criminal proceeding, he was a person not authorized or permitted by law to be present before the grand jury, within the meaning of the paragraph of section 5319. We think there is no merit in the contention, as matter of law. The grand jury is simply a tribunal organized to make inquiry, and may call any person before it as a witness. State v. Porter, 74 Iowa, 623, 38 N. W. 514. The court will not inquire into the sufficiency of the evidence taken, nor will an indictment be vitiated because it may be made to appear that an incompetent witness was called and gave testimony during the course of the investigation in question. State v. Tucker, 20 Iowa, 508;State v. Smith, 74 Iowa, 580, 38 N. W. 492;State v. Frost, 95 Iowa, 448, 64 N. W. 401;State v. De Groate, 122 Iowa, 661, 98 N. W. 495. It may be conceded that the proceeding was of questionable propriety. State v. Clifford, 86 Iowa, 550, 53 N. W. 299, 41 Am. St. Rep. 518. But as he was in fact called as a witness, and conceding even that in his situation he was incompetent, we do not think his complaint could be given force to set aside the indictment.

2. The court, in its instructions to the jury, and proceeding in accordance with Code, §§ 5406, 5407, defined the degrees of the crime specifically charged in the indictment, and, separately, each of the included offenses; and the jury was told that the defendant might be convicted of any thereof of which the evidence satisfied them of his guilt beyond a reasonable doubt. The correctness of the instructions considered in the abstract is not questioned. The contention for error in respect thereto...