State v. Smith

• Citation: 193 N.W. 181
• Decision Date: 26 November 1920
• Docket Number: No. 33534.,33534.
• Parties: STATE v. SMITH.
• Court: United States State Supreme Court of Iowa

193 N.W. 181

STATE

v.SMITH.

No. 33534.

Supreme Court of Iowa.

Nov. 26, 1920.

Appeal from District Court, Marion County; Lorin N. Hays, Judge.

Conviction on an indictment charging rape. Defendant appeals. Reversed and remanded.J. O. Watson, of Indianola, and L. D. Teter, of Knoxville, for appellant.

H. M. Havner, Atty. Gen., F. C. Davidson, of Emmetsburg, and N. D. Shinn, Co. Atty., and W. H. Lyon, both of Knoxville, for the State.

SALINGER, J.

[1][2][4] I. Whether the petition for a change of venue was in fact meritorious is not a question before us. The best sustained application for such change must be overruled if it be not supported by affidavit as the statute requires. Some affidavits were withdrawn. The court overruled the application and declared in connection therewith: “As to the statutory grounds, I do not think the necessary affidavits now remain.” This recital or statement to the effect that there had been enough withdrawals to reduce the affidavits below the required number is presumed to state the truth. Bales v. Murray, 186 Iowa, 649, 171 N. W. 747. With less than the required number of affidavits attached, it became the duty of the court to overrule the petition. True, after the same had been overruled there was a request for permission to “put on some more proof,” and an offer to call witnesses to show prejudice and passion. The trial judge denied this application and expressed himself as of opinion that the grounds for change of venue must be established by affidavit. We are not required to pass upon this ruling, because no exception was taken thereto. Following this, defendant offered to attach “other signatures and additional signatures for a change of venue,” to attach “three additional signatures to the affidavit or to attach three additional affidavits to said petition, and to amend said petition by so doing. The court declined to permit this, and placed it on the ground that it had already ruled on the motion. To say the least, the court had a discretion as to permitting said amendment after the motion had been overruled. We are unable to hold that this discretion was abused.

[5] II. Many complaints are made of rulings on challenges interposed to grand jurors and to trial jurors. Ordinarily the question of whether such rulings were right is a moot one where there must be a new trial without reference to those rulings; for, unless the reversal sets aside the indictment, there will be no grand jurors to challenge after remand. And so the question of whether challenges to grand jurors were rightly ruled on is academic. And it is quite unlikely that on retrial any juror who served on the first trial will be permitted to sit on the second. So that, as said, ordinarily we would have here nothing but moot questions. In such cases anything we said would be merely a general guide for the future, and our reports are filled with such guides now.

[6] But it is urged that for error in ruling upon challenge to one member of the grand jury the indictment should have been quashed or set aside. Of course, that makes the propriety of the ruling on the challenge a live question. By his challenge the defendant asserted, in effect, that one member of the panel was related to prosecutrix by consanguinity or affinity within the ninth degree. The objection was not made until after the grand jury had been sworn. We think it is sufficiently shown that the attorney for defendant had no knowledge of this relationship until he learned of it two or three days after the cause had been submitted to the grand jury, and that even then he was not correctly advised as to the exact nature of the relationship. We may assume that, when counsel examined this grand juror, there was not elicited the fact that any relationship existed; that counsel was misled by the answers of the juror, even if innocently made; that counsel believed from this examination that none of the panel had any acquaintance with the father of prosecutrix; and that, if counsel had known this relationship, he would have challenged the juror before the grand jury was sworn. The state contends that section 5243 of the Code recognizes no ground of challenge to an individual grand juror except for his being prosecutor, or because he has formed or expressed such opinion as would prevent him from rendering a true verdict. The statute does say that the challenge by defendant is allowed for these reasons only. However, it provides also that: (1) Challenge may be made by the state or the defendant that the grand juror does not possess the qualifications required by law; (2) that certain enumerated challenges may be made by the state only. Then follows the said provision as to what the defendant may challenge for. The statute as a whole seems to leave it in doubt whether the limitation as to said challenge by the defendant narrows the grounds upon which the defendant may interpose challenge, or is a privilege by which he alone is permitted to interpose the said two challenges. But the state contends further that challenges to an individual grand juror must be made before the grand jury is sworn. If that is so, we need not decide whether the challenge proceeded on permitted grounds. Appellant asserts that by reason of certain statutes and decisions, his challenge was made in time.

Section 3688 of the Code defines and specifieswhat shall be a challenge for cause and deals with trial jurors only. Though it speaks of objection “to a juror,” this general language is limited by the context and statutes in pari materia. Code, § 5360, once more deals with challenges for cause, says they may be made either by the state or defendant, and that they must be made for enumerated causes, and once more, despite this general introduction, seems quite clearly to deal with trial jurors; and, unlike section 5243, it has nothing to say as to the time at which the challenge must be interposed. Code, § 5319, deals with the grounds for setting aside an indictment on motion. One ground is “that the grand jury were not selected, drawn, summoned, impaneled or sworn as prescribed by law.” We find nothing in State v. Gillick, 7 Iowa, 287, that bears on the point under consideration, and so of State v. Pickett, 103 Iowa, 714, 73 N. W. 346, 39 L. R. A. 302, relied on by the state. And it seeems to deal with trial jurors only.

On finding that section 4261 of the then existing Code (Code 1873), which gives the right to challenge a grand juror on the ground of opinions formed and expressed of his guilt, does not prescribe the time within which the right shall be exercised, it is held in State v. Osborne, 61 Iowa, 330, 16 N. W. 201, that the prisoner, upon information received, ought to be permitted to challenge the grand jurors at any time before they consider the case; that they are lawfully subject to challenge on account of matters arising after a prior challenge has been made. It was accordingly held that, where an indictment was set aside as a nullity on account of illegality, the grand jurors who found the indictment are subject to challenge on the ground that in the finding of the illegal indictment they have formed and expressed an opinion as to the guilt of the prisoner, and that it was error to deny the right of challenge and to resubmit the case to the same grand jurors over objection. All we find in State v. Bullard, 127 Iowa, 168, 102 N. W. 1120, is that on resubmission of a charge to a grand jury after an indictment has been set aside, if it appears from an examination of the jurors that several were members of the jury which returned the original indictment, and they state they had formed and expressed an opinion as to the guilt of the defendant and retain it, and say that, if the same evidence was again presented, they would return an indictment, and, if called as petit jurors, they would vote to convict on the same evidence, such jurors are incompetent under Code, § 5243, although they also state that they have no prejudice or bias against the accused, and that their opinions would not prevent them from giving an impartial consideration of the evidence and rendering a true finding thereon.

On the other hand, section 5243, Code 1897, stating the grounds of challenges, says they “may be made before the grand jury is sworn.” Speaking to a challenge that grand jurors had been selected from newly created precincts in which no general election had ever been held, we said in State v. Pierce, 90 Iowa, 506, 58 N. W. 891, that it has been repeatedly held a defendant held to answer has an opportunity to challenge the grand jury before it is sworn, and, if he fail to do so, he cannot afterwards make the objection. We held in State v. Gibbs, 39 Iowa, 318, that right to challenge a grand juror on the ground that he is an alien must be exercised before the jury is sworn, and, failing to avail himself of it, then defendant cannot afterwards urge the objection.

We are of opinion the challenge here came too late.

[7] III. At 9 o'clock in the forenoon of February 24th a rule was asked and granted requiring the separation of witnesses during the taking of testimony. Thereafter prosecutrix was duly sworn. Before the examination was proceeded with defendant insisted on the enforcement of this rule as to the father of prosecutrix, saying that the probability was they would want to use Mr. Barnes again.

“Court: The court will not do that. He is a necessary party here. He will be allowed to remain in during this trial. Counsel: Please note the objection of the defendant. Court: Neither Mr. Barnes nor the defendant will be sent out during the trial. Mr. Barnes has a right in here always.”

Defendant excepted. Still later, when the prosecutrix was called, defendant objected to Mr. Barnes remaining in the courtroom during her examination.

“Court: The court has already ruled that he would be permitted to remain in the room as an aid to counsel conducting this case.”

Defendant excepted....