The State v. Fowler

• Decision Date: 22 October 1879
• Citation: 2 N.W. 983,52 Iowa 103
• Parties: THE STATE v. FOWLER
• Court: Iowa Supreme Court

2 N.W. 983

52 Iowa 103

THE STATE v. FOWLER

Supreme Court of Iowa, Des Moines

October 22, 1879

Appeal from Van Buren District Court.

THE defendant was indicted for an assault with an intent to inflict a great bodily injury upon George Ruth, was tried convicted of an assault, and fined $ 25 and costs. He appeals.

REVERSED.

Trimble & Baldwin, for appellant.

J. F McJunkin, Attorney General, and Work & Brown, for the State.

OPINION

DAY, J.

I.

Before pleading to the indictment the defendant filed a motion to set it aside, and in support of said motion filed the following affidavit: "Lewis Fowler, being duly sworn, on his oath says he is a resident of said county, and was in attendance on the District Court of said county at its August term, 1877. That at the time of calling the grand jury of said court at said term, and before it was impaneled or sworn, the defendant, Silas Fowler, was permitted to and did exercise his right of examination and challenge, as to said persons, and said jury was then impaneled and sworn. That after said impaneling, and on the 14th day of August, 1877, and on the 15th day of said month in the forenoon, the witnesses in said case were examined before said grand jury. That on the afternoon of said 15th day of August, 1877, one of said grand jurors was by the court excused and discharged therefrom; and thereupon, and at once, another person was selected from among the bystanders and put upon said jury, and thereupon, without affording the defendant any opportunity to examine or challenge said grand juror, said jury was reorganized and sworn again, and at once retired to their room. That none of said witnesses, nor any others, were again examined before said new grand jury, but on the 23d day of said August, 1877, said jury found and returned into court the indictment against said defendant, which is now pending for trial in said court." The court overruled the motion to set aside the indictment on the ground that it could not inquire into or question the legality of the action of the grand jury in the alleged particular, and that the same if true, as shown by the affidavit, was not sufficient to set aside the indictment. This action of the court the defendant assigns as error.

1. The court, we think, correctly held that it could not inquire into the character of the evidence upon which the grand jury acted.

2. It is not shown that the grand juror selected in place of the one discharged was disqualified to act. It does not, therefore, appear that if the defendant had been permitted to examine him he could have prevented his serving on the jury. It is not shown that the defendant was prejudiced by not having the privilege of challenging this juror. See State v. Felter, 25 Iowa 67 (70).

II. The evidence shows that the defendant and George Ruth were attending a district school. At recess in the forenoon an altercation occurred between them about fifty yards from the school-house, when the defendant struck George Ruth on the head with a slung shot, knocking him down, and inflicting a slight wound from which blood flowed quite freely. The State read from an affidavit for continuance what it expected to prove by Edwin Petit, the teacher, as to the occurrence after school was called, immediately after the difficulty, as follows: "That he asked Silas Fowler to give him the slung shot, with which he struck Ruth, and Fowler at first denied that he had it, but when told that he had it and must give it up, came forward in a menacing manner with a knife in his hand, and when witness caught his hand defendant handed him a slung shot and said "here it is, but I do not want the school to see it." This testimony was objected to as incompetent. It was proper to show that defendant had a slung shot in his possession, but proof that he came forward in a menacing manner, with a knife in his hand, constituted no part of the res gestoe and was calculated to create a prejudice against the defendant in the minds of the jury.

III. The State offered to read from the motion for a continuance a statement of what Grant Wollam would swear to. The defendant objected that this witness was not before the grand jury, and his name is not indorsed upon the indictment. The minutes of the evidence show that the names Frank Wollam and Grant Wollam are written one over the other. The court heard evidence upon the subject and found, as we think correctly that Grant Wollam was before the grand jury, and that ...