State v. Von Kutzleben

• Decision Date: 24 October 1907
• Parties: STATE OF IOWA v. ERICH VON KUTZLEBEN, Appellant
• Court: Iowa Supreme Court

113 N.W. 484

136 Iowa 89

STATE OF IOWA v. ERICH VON KUTZLEBEN, Appellant

Supreme Court of Iowa, Des Moines

October 24, 1907

Appeal from Iowa District Court.--HON. O. A. BYINGTON, Judge.

THE defendant was convicted of murder in the first degree, and from the judgment he appeals.-- Reversed, and new trial awarded.

Reversed.

Popham & Havner, for appellant.

W. H Byers, Attorney-General, Charles W. Lyon, Assistant Attorney-General, and W. E. Wallace, County Attorney, for the State.

OPINION

BISHOP, J.

I.

At the time and in the manner prescribed by law, twelve persons were drawn as the regular panel for the grand jury in Iowa county for the year 1905. The March term of court for said county began March 13th and on that day the persons forming the panel appeared, and there was organized a grand jury for the term consisting of seven persons as required by law, one of whom, John Mulherin, was appointed and served as foreman. On March 17th the jury made its report to the court and was excused from further attendance. Following this, the defendant, Von Kutzleben, was arrested charged with murder committed within the county. On April 13th on motion of the county attorney, the persons originally selected as the jury for the March term were recalled, and they appeared. The five remaining members of the panel for the year were also summoned and appeared. Each of the twelve members of the panel were in turn challenged for cause, and the challenges sustained. Thereupon the court ordered "that twelve names be drawn from the grand jury list, and that a venire issue," etc. Acting under this order, the clerk drew from the list the names of twelve persons. Of such persons, three were residents of one township, two of another, two of another, two of another, and one from each of three other townships. And the persons whose names were thus drawn were summoned under venire and appeared. The court then directed the clerk to call the jurors into the box in the order in which they had been drawn from the list. The defendant here interposed the objection that the jurors had not been drawn, called, or summoned as required by law, and the objection was overruled. A juror being called into the box, the same objection was made, and the further objection that the juror was a resident of the same township from which others of the grand jurors were drawn. The objections were overruled. The same objections were made to each of the other jurors as called. In the case of each who had been preceded by another juror from the same township, and against whom challenge had not been allowed, the objection was sustained. In all other cases it was overruled. When seven had been selected, the defendant objected on the same grounds to the body as a whole, and this was overruled. No one of the seven was appointed and sworn as foreman. The oath administered was to the jury generally. Before the jury retired, however, the court called John Mulherin, one of the regular panel, who had been challenged for cause and the challenge sustained, and he being the person who had acted as foreman of the jury as impaneled at its first sitting beginning March 13th, and directed him that, while he should not be present at or take any part in the deliberations of the grand jury, yet that he should remain subject to the call of the county attorney, and should indorse as foreman of the grand jury as a true bill any indictment found by the grand jury as impaneled against the defendant. On the following day, an indictment was returned against defendant by the jury of seven, and it bore the indorsement as a true bill by Mulherin as foreman. It was under this indictment that the defendant was placed on trial and convicted.

By the objections made, and by a motion in arrest, the defendant challenged the regularity and legality of the proceedings thus had leading up to the indictment. The contention, first in order, has relation to the drawing by the clerk of the special panel of grand jurors. It is a provision of the statute that the regular grand jury panel shall consist of twelve persons, whose names shall be drawn from the grand jury list; "but no more than one person shall be drawn as grand juror from any civil township," etc. "If more persons shall be drawn from any civil township than is hereby authorized, . . . it is the duty of the officer drawing such grand jury to reject all such names so drawn, and to proceed with the drawing until the required number of jurors shall be secured." Code, section 339. It is further provided by statute that the grand jury, when made up, shall consist of seven persons to be drawn from the panel of twelve. Code, section 5240. Where, however, a challenge to the panel is allowed, a new grand jury shall be impaneled to inquire into the charge against the defendant making the challenge. And "the names of jurors required to impanel a new jury shall be drawn from the grand jury list." If, in any given case, the grand jury has been reduced to a less number than seven by reason of challenges to individual jurors, "the additional jurors required to fill the panel shall be summoned, first, from such of the twelve jurors originally summoned which were not drawn on the grand jury as first impaneled, or excused, and if they are exhausted, the additional number required shall be drawn from the grand jury list, and the court shall, when necessary, issue a venire," etc. Code, section 5246.

The contention for error first to be noticed is that the clerk is drawing the special panel gave no attention to the matter of the township residence of the persons whose names he drew, so that there was included in the panel more than one person from each of four civil townships. In the view taken by the writer, with whom is WEAVER, C. J., the contention is meritorious and should be sustained. The majority of the court, however, think otherwise, and from this it results that the action of the trial court must be approved.

Next in order is the contention that error arose out of the manner of the drawing by the clerk, under order of the court, from the panel summoned under special venire to make up the jury. It will be observed that upon the coming of the jurors under the special venire the court ordered the clerk to make call thereof in the order in which they were drawn from the jury list. We are agreed that this was erroneous. Code, section 5240, provides for the manner of drawing a grand jury, and this is to be done by placing the names of the members of the panel in a box, "and after thoroughly mixing the same, he shall draw," etc. While the rule does not in terms make reference to a drawing from a special panel, it cannot be doubted but that such drawing was intended to be included. The majority of the court are of the opinion, however, that there was no prejudice to the defendant, for that it appears that each member of the panel was called into the box in turn, and the right of challenge given as to each.

The organization of the grand jury, and the indictment returned by it, is further challenged for that no foreman was appointed and sworn as such, and the indictment returned was not indorsed by the foreman or other member of the jury as a true bill, but by a person who was not a member of the jury. The statute is that every grand jury must be officered by a foreman, and he must be one of the persons impaneled as a member of the jury. Code, section 5248. Evidently the court below took the view that, as Mulherin had been appointed foreman on the impanelment of the jury at the opening of the court for the term, he would continue as such, notwithstanding the challenge allowed as against him in this particular case; accordingly, that it was not necessary to make any further appointment. While we are agreed that this is not true under the reading of the present statute, the majority of the court take the view that the statute is to be considered as directory only, and that, it appearing that the indictment was voted and returned by the seven persons constituting the jury, there was no prejudice.

II. Having disposed of the matters of error lying back of the indictment, we come now to consider the several contentions based upon the rulings, etc., occurring upon the trial. On June 17, 1905, the defendant, having first pleaded not guilty to the indictment, moved for a continuance of the cause to the October, 1905, term of court. The showing for the continuance made disclosure that mental irresponsibility on the part of the accused was a matter that would be urged and relied upon in making out his defense; that he (defendant) was a native of Germany, and had been in this country but a short time; and that it would be necessary to procure the evidence to substantiate his defense from witnesses -- the names of whom and their precise place of residence was unknown -- residing in Germany. This motion was sustained. At the October term of court, the defendant again moved for a continuance, and this motion was overruled. In the application it was recited that, while the names of many of the witnesses, and their place of residence had been ascertained, yet, through lack of time and funds, their evidence had not been secured. We shall not set out the showing in full. It is sufficient to say that the desired evidence was material in character, and we think the showing as to diligence was sufficient. If the act committed as charged in the indictment was that of a crazy man, he could not, of course, be subjected to the punishment provided for by the law. And there could be no justification for putting him on trial without giving his counsel reasonable opportunity to bring...