State v. Walker

• Decision Date: 13 December 1921
• Docket Number: No. 34423.,34423.
• Citation: 192 Iowa 823,185 N.W. 619
• Parties: STATE v. WALKER.
• Court: Iowa Supreme Court

192 Iowa 823

185 N.W. 619

STATE

v.WALKER.

No. 34423.

Supreme Court of Iowa.

Dec. 13, 1921.

Appeal from District Court, Hamilton County; H. E. Frye, Judge.

Trial on an indictment for the crime of breaking and entering a building in the nighttime, resulting in a verdict of guilty. Motion for new trial was overruled, and judgment was entered on the verdict. Defendant appeals. Reversed.

Preston, J., and Evans, C. J., dissenting in part.R. G. Remley and D. C. Chase, both of Webster City, for appellant.

Ben J. Gibson, Atty. Gen., Neill Garrett, Asst. Atty. Gen., and E. P. Prince, Co. Atty., of Webster City, for the State.

DE GRAFF, J.

The defendant was indicted by the grand jury of Hamilton county, Iowa, on April 28, 1921, for the crime of breaking and entering a building on the night of March 18, 1921. A plea of not guilty was entered to said indictment on the 3d day of May, 1921. Trial was had thereon commencing on the 16th day of May, 1921.

[1] 1. On the 9th day of May, 1921, defendant filed a motion for continuance, which was overruled by the court. Error is predicated on this ruling. The only material recital in said motion as a ground for continuance is:

“That it is markedly unfair to defendant to be forced to trial before he or his counsel, who has been appointed by the court to defend him, have sufficient time to adequately prepare his defense.”

Our Criminal Code provides that as soon as practicable after an indictment is found the defendant must be arraigned thereon, unless he waive the same. Section 5310. The defendant shall, if he demands it upon entering his plea, be entitled to three days in which to prepare for trial. Section 5370.

[2] In the instant case 13 days intervened between his plea and the commencement of the trial. This afforded him reasonable opportunity to procure his witnesses and stand prepared for trial. It rests with the trial court, in the exercise of sound discretion, to fix the time during the term when a defendant shall be put upon his trial, and unless there is a clear showing of abuse of discretion and resulting prejudice, this court will not interfere. State v. Maher, 74 Iowa, 77, 37 N. W. 2. A trial judge should be commended, rather than criticized, in his effort to secure speedy trials on indictments returned to his court.

2. Prior to impaneling the jury in the instant case, the defendant filed written objections by way of “challenge to the jury lists, the panel, and the jury.” The challenge was predicated upon the following grounds: (1) That the jury list contained names of judges of election who had placed their own names thereon; (2) that the jury and talesmen's lists were not prepared and certified as required by law; (3) that names were included by the county auditor on the jury list which were not certified by the judges of election as required by law; (4) that said jury lists and the panel are composed of the names of men and women indiscriminately, contrary to law.

All the provisions of law relating to challenges to the panel of trial jurors in civil procedure, including the grounds therefor, the manner of exercising the same, and the effect thereof, apply to the panel of trial jurors in criminal causes, and the same rules for the drawing of the jury are applicable in criminal as in civil causes. Code, §§ 5358 and 5356. A challenge to the panel can be founded only on a material departure from the forms prescribed by law in respect to the drawing and return of the jury, and such challenge must be in writing, specifying the facts constituting the ground of challenge. Code, §§ 3679 and 3680. If the challenge is sustained by the court, the jury must be discharged; if it is overruled, the court shall direct the jury to be impaneled. Code, § 3682. It is also competent upon a challenge to the panel to examine any person as a witness, or any judicial or ministerial officer whose irregular or illegal act is the subject of complaint. Code, § 3681.

The defendant, in support of his challenge and objections, called as witnesses the county auditor, the county clerk, and one of the judges of the election board of the fifth ward of Webster City, Iowa. Their testimony discloses that Charles Lacy was one of the election judges; that his name was one of the names returned for the petit jury list, and that he put his own name on the list, as returned from the fifth ward of Webster City, Hamilton county, Iowa; that in the pollbooks returned from Ellsworth township, in said county, there were no names returned in the place designated in said book for the petit jury list, but in making up the complete jury list the county auditor took the names from another place in said book; that the judges of election of Hamilton township failed to certify the petit jury list in the pollbook; that this is also true as to the return made by the judges of election of Scott township that in both of these instances the county auditor added names that were uncertified in the pollbooks on the complete jury list of Hamilton county; that at least 25 names of women were returned and certified on the petit jury and talesmen lists; that the name of one woman was on the panel of the jury at the trial term.

[3][4] This court is committed to the doctrine that slight deviations from the statutory method of selecting jurors do not constitute prejudicial error. State v. Clark, 141 Iowa, 297, 119 N. W. 719. In the light of the instant record, were the material provisions of the Code in the drawing and certifying of jurors, or in the preparation of the jury lists, substantially observed? Section 337, Code Supp. 1913, constitutes the authority to the judges of election in the preparation and certification of jury lists, and, although its provisions are construed as directory, a substantial compliance therewith is required. State v. Wilson, 166 Iowa, 309, 144 N. W. 47, 147 N. W. 739.

The name of no person who has served as judge or clerk of the general election in the year in which said jury list is prepared shall be returned, and the members of the election board shall certify to the lists of grand and petit jurors and talesmen, and shall state that the lists do not contain the name of any person who requested, directly or indirectly, that his name appear thereon, and that it does not contain the name of any one who served as judge or clerk at such election.

[5] If the name or names of such persons are returned, such fact shall be a ground for challenge for cause. Code, § 337. We find no authority in our statute which will warrant the county auditor placing names on the jury list taken at random from returned uncertified pollbooks. This is the function of the board of supervisors. The action of the county auditor was a material departure from statutory provision, and the challenge entered by the defendant in this particular was sufficiently supported and should have been sustained by the trial court.

The fourth ground of challenge presents a new question to this court: Are women competent and eligible to act as jurors under the Constitution and statutes of Iowa? This question speaks its own importance, but it can be fully answered by the consideration and the application of the Nineteenth Amendment to the Constitution of the United State in its relation to the Constitution and statutes of Iowa.

This amendment as adopted August 26, 1920, and as declared by the certification of the Secretary of State reads as follows:

“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex. Congress shall have power to enforce this article by appropriate legislation.”

Article 2, § 1, of the Constitution of Iowa, reads:

“Every male citizen of the United States, of the age of 21 years, who shall have been a resident of this state six months next preceding the election, and of the county in which he claims his vote sixty days, shall be entitled to vote at all elections which are now or hereafter may be authorized by law.”

[6] By the inherent force of the language of the Nineteenth Amendment, as a part of the supreme law of the land, women are included and made a part of the electorate of this state, and no further legislation pursuant to this amendment is required by Congress or by the General Assembly of the state of Iowa. The amendment is self-executing. The Supreme Court of the United States, in construing the so-called grandfather clause of the amendment to the Constitution of Oklahoma in its relation to the Fifteenth Amendment to the United States Constitution, said:

“It is equally beyond the possibility of question that the amendment in express terms restricts the power of the United States or the states to abridge or deny the right of a citizen of the United States to vote on account of race, color or previous condition of servitude. The restriction is coincident with the power and prevents its exertion in disregard of the command of the amendment. But while this is true, it is true also that the amendment does not change, modify or deprive the states of their full power as to suffrage except, of course, as to the subject with which the amendment deals and to the extent that obedience to its command is necessary. Thus the authority over suffrage which the states possess and the limitation which the amendment imposes are co-ordinate and one may not destroy the other without bringing about the destruction of both.

While in the true sense, therefore, the amendment gives no right of suffrage, it was long ago recognized that in operation its prohibition might measurably have that effect; that is to say, that as the command of the amendment was self-executing and reached without legislative action the conditions of discrimination against which it was aimed, the result might arise that as a consequence of the striking down of a discriminating clause a right of suffrage would be enjoyed by reason of the generic character of the provision which...