State v. Wheeler

Decision Date21 November 1905
Citation105 N.W. 374,129 Iowa 100
CourtIowa Supreme Court


Appeal from District Court, Butler County; J. F. Clyde, Judge.

The defendant was convicted of an assault with intent to maim and disfigure, and from the judgment he appeals. Reversed.Sager & Sweet, for appellant.

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


The defendant was charged by information, filed before a justice of the peace, with an assault with intent, etc., committed upon Mrs. Parney Ramsey, a widow living near the town of Clarksville, and upon being arrested under warrant he waived examination and was bound over to await the action of the grand jury. At the succeeding term of the district court the defendant appeared with counsel, and after the clerk had called from the grand jury list the names of seven men, all of whom responded, one thereof was challenged by defendant and the challenge sustained. The court ordered and directed the challenged juror to take no part in the consideration of the charge made against defendant, and thereupon the jury, consisting of the seven members, was sworn and retired. On a following day of the term there was found and returned an indictment against the defendant, charging him with the crime for the commissionof which he was bound over. It is conceded that in voting such indictment the grand juror who had been challenged took no part. The defendant appeared, and before plea moved that the indictment be set aside on the ground that the grand jury had not been selected, sworn, and impaneled according to law, in that, the challenge to one of the jurors having been sustained, the vacancy thereby caused was not filled, and that “the grand jury returning said indictment was composed of six members instead of seven, as required by law.” This motion was overruled, and, based thereon, the defendant contends for error.

The statute provides that the grand jury shall consist of seven members. Code, § 5240. And the concurrence of five members is necessary to the finding of an indictment. Code, § 5274. In the case of a defendant who has been held to answer for a public offense, a challenge is allowed to the panel before the jury is sworn, but only for the reason that it was not selected, drawn, or summoned as prescribed by law. Code, § 5241. Individual jurors may be challenged on one or more of three grounds, each relating to the matter of personal qualification. Code, § 5243. Now, prior to the 27th General Assembly there was no statute provision directing in what way the impanelment of the grand jury should proceed in cases where either a challenge to the panel, or to one or more individual jurors, was sustained. There was the simple provision, made by Code, § 5246, that, “if a challenge to an individual juror be allowed, he shall not be present at or take any part in the consideration of the charge against the defendant.” To supply the deficiency the Twenty-Seventh General Assembly passed an act, now appearing as Code Supp. § 5246, which amended Code, § 5246, by adding thereto the following: “If a challenge to the panel is allowed, or if by reason of challenges to individual grand jurors being allowed, or if for any cause at any time, the grand jury is reduced to a less number than seven, a new grand jury shall be impaneled to inquire into the charge against the defendant in whose behalf the challenge to the panel has been allowed, or the panel of the jury so reduced below the number required by law shall be filled as the case may be. If a challenge is allowed to the panel the names of the jurors required to impanel a new jury shall be drawn from the grand jury list. If such grand jury has been reduced to a less number than seven by reason of challenges to individual jurors being allowed, or from any other cause, 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 to secure the attendance of such additional jurors. The persons so summoned shall serve only in the case, or cases, in which, by reason of challenges, or other causes, the regular panel is set aside or is insufficient in number to find an indictment.”

It is conceded by the Attorney General that orderly procedure, under the statute as existing at the time, dictated that an additional juror should have been called to supply the place of the one challenged. But it is his contention that it was not open to the defendant to complain of the omission after indictment found. And this contention, we think, must be sustained. “The motion to set aside an indictment can be made, before a plea is entered by the defendant, on one or more of the following grounds, and must be sustained: * * * (5) That the grand jury were not selected, drawn, summoned, impaneled or sworn as prescribed by law.” Code, § 5319. But “the ground of the motion to set aside the indictment mentioned in the fifth subdivision of section 5319 is not allowed to a defendant who has been held to answer before indictment.” Code, § 5321. Undoubtedly it was intended by Code, § 5321, to provide, as against a defendant held to answer, that all matters having relation to the organization of the grand jury should be foreclosed by the finding of an indictment. Such, indeed, is the plain reading of the section. And therefrom it follows that, whatever the irregularity in the...

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