State v. Will

• Decision Date: 28 January 1896
• Citation: 65 N.W. 1010,97 Iowa 58
• Parties: STATE OF IOWA v. F. J. WILL, Appellant
• Court: Iowa Supreme Court

65 N.W. 1010

97 Iowa 58

STATE OF IOWA v. F. J. WILL, Appellant

Supreme Court of Iowa, Des Moines

January 28, 1896

Appeal from Wright District Court.--HON. B. P. BIRDSALL, Judge.

THE defendant was indicted for and convicted of a liquor nuisance, was sentenced to pay a fine and appeals.

Reversed.

D. C Filkins and Nagle & Nagle for appellant.

Milton Remley, attorney general, and Jesse A. Miller for the state.

OPINION

KINNE, J.

I.

The indictment charges the defendant with the crime of nuisance and is in the usual form. Defendant moved to set it aside for the following reasons: Because it was found upon the compulsory order and direction of the judge of the district court, that after the grand jury had reported that they had no further business, and asked to be discharged, the court ordered them to return to their jury room; and that the judge of said court afterwards went to said jury room, without being requested so to do by the grand jury, and directed said grand jury to find said indictment; and the same was thus found under the duress and compulsion of the court, and contrary to the opinion and wishes of said grand jury. The judge, Hon. N. B. Hyatt, when the grand jury asked to be discharged, said to them: "I am compelled to say to you, from what I have heard, which I must believe to be true, as relates to the condition of things in your county, that you have not discharged your duty,--that there is other business that you ought to attend to. I cannot discharge you, as grand jurors, until you have made some effort to bring the persons who are guilty of violation of the law for the suppression of intemperance to justice. I charge you to return again to your grand jury room, and make an effort to procure witnesses and prosecute the parties who have been guilty of violating that law in this county. I feel sure that abundance of witnesses can be obtained and abundant evidence procured that will warrant you in returning indictments against the various parties in this county. I cannot believe that you, as intelligent and good citizens of this county, can justify yourselves in going to your homes without making an attempt to bring the guilty parties to justice. You will retire, and proceed to discharge your duties in accordance with the instruction of the court." The motion to set aside the indictment was overruled, and this action of the court is assigned as error. The law provides that, when the grand jury is impaneled and sworn, it may be charged by the court; that in doing so the court shall give them such information as it may deem proper as to the nature of their duties, and any charges for public offenses returned to the court, or likely to come before the grand jury. It is further provided, "And it is hereby made the duty of the court to specially give in charge to the grand jury, the provisions of the law * * * providing for the suppression of intemperance." Code, section 4270. Section 4271 provides that the court shall discharge the grand jury on the completion of its business. It is clear that whether or not the grand jury has completed its work is a matter not entirely to be determined by that body, but its decision in that respect is always subject to the judgment of the court. The court may at any time during the sitting of the grand jury, and before its final discharge, give that body further charges as to matters arising since the first charge was given, and as to matters concerning which they should be charged, and which may have been overlooked by the court in giving the original charge; and it may be within the province of the court, in a proper case, to call the attention of the grand jury generally to its duty with reference to the laws touching the suppression of intemperance, even though that was done when the original charge was given. This is especially true if it appears to the court that in that respect the grand jury has not investigated to ascertain whether or not such law has been violated. An examination of the language used by the court (Judge N. B. Hyatt) shows that it did not call the attention of the grand jury to the supposed violation of the law by any particular person. From the tenor of the court's remarks it would seem that he must have thought that the grand jury had given the matter of the violation of this law no attention whatever. Under such circumstances, it was within his province, if not his duty, under the provisions of the law, to call the attention of the grand jury to the necessity for investigating supposed violations of this law. The real question is, did the court, in what he said, exceed the proper limits? The utmost effect of the language used was to tell the jury that the court believed they could find evidence which would warrant them in returning indictments for the violation of the liquor laws. In so far as the charge directed the grand jury to investigate the matter of violation of the law, it was proper; but, in so far as it undertook to tell the jury that there was evidence warranting them in indicting parties for violation of this law, it was, in our judgment, improper and unwarranted. As to that, the grand jury alone were the judges, and the court had no right to invade their province in that respect. State v. Turlington, 102 Mo. 642 (15 S.W. 141); 2 Hale, P. C. 161; Clair v. State (Neb.) (40 Neb. 534, 59 N.W. 118).

II. It appears from the affidavits of three of the grand jurors, which are not disputed, that the presiding judge, Hyatt, went into the room of the grand jury, and while they were in session, and personally urged the indictment of parties for violating the liquor laws. One grand juror swears that the judge said to them "that he knew there was evidence enough to indict Smallpage Bros. and F. J. Will [the defendant herein], and said, 'You have got to indict them.'" Another swears that the judge told them, "There is not a drug store in Wright county that was not violating the law, and liable to be indicted," that he gave them "positive orders to indict all such places." Another swears that he told them "that the permits themselves were sufficient evidence on which to base an indictment." All of these grand jurors swear that the indictment in this case was found, not of their own free will and upon their own judgment, but upon the express orders of the judge, given as heretofore stated. For the reasons heretofore stated, defendant moved to set aside the indictment. The motion was overruled, an exception taken, and error properly assigned.

The attorney general insists that these affidavits are not competent to impeach the record, proceedings, or findings of the grand jury; that, when the indictment is returned and filed, it becomes a record (Code, section 4294), which cannot thus be assailed or impeached. He also insists that, upon a motion to set aside an indictment, the character of the evidence upon which the grand jury acted cannot be inquired into. We proceed to a consideration of the cases relied upon by the attorney general: In State v. Gibbs, 39 Iowa 318, it was held that the fact that an indictment was presented and filed after the adjournment of court, and that the grand jurors did not assent to the finding of an indictment, cannot be shown by affidavits of grand jurors in support of a ...