State v. Hart

25 N.W. 99, 67 Iowa 142

• Court: Supreme Court of Iowa
• Decided: October 20, 1885
• Status: Published

Opinion

Beck, Oír. J.

i. ckiminal ohyt|e of uiegailyry drawu: indictmontby second grand iorqnasS°be” íuíywmaciSrged.ls" I. The defendant moved to set aside the indictment for the reason that the grand jury finding it had not been drawn in the manner prescribed by law. The facts upon which the motion was based are these: A defendant held to answer to a crim- ... mal charge had challenged the grand nury on the ° a o j j ground that it was illegally drawn, in that the lists °t’ grand jurors had been compared with a transcript of the poll-books, and not with the poll-books themselves. See Code, § 240. Upon the consideration of the challenge, the district court sustained it, deciding that the jury had not been lawfully drawn, and discharged the grand jury, and another was summoned as prescribed by Code, § 244. Defendant was indicted by the grand jury summoned in the place of the one discharged. He now insists that the first grand jury was illegally discharged, and that the second was therefore unlawfully impaneled.

II. The question of the illegal impaneling of the second jury depends upon the correctness of the decision of the court in discharging the first. If that dicision was correct, then the second was lawfully impaneled. It will be held by the law as correct until it is lawfully set aside or reversed. But that cannot be done in a collateral proceeding, and the motion of defendant to quash the indictment is of such a proceeding. We must keep in view the exact facts. Defendant by his motion does not directly assail the decision under which the first jury was discharged j he attacks the order of the court impaneling the second, which he claims was irregular because there was another lawful jury, the first one, or because the decision under which it was discharged was erroneous. He thus, in fact, assails the first order in a collateral proceeding. We need not inquire whether defend; ant could, under the provisions of the law, assail in any manner the order for the discharge of the first j nry. If the statute makes no provision for such a proceeding, we cannot supply the omission. The impediment in the way of the administration of the criminal law, which would arise in case defendant’s position is sound, would obviously result, in many cases, in the defeat of justice. The order of the court discharging the grand jury would come up for review in all cases wherein indictments should be found by the second grand jury, thus making the administration of justice uncertain. The objection urged by defendant is not commended to us by any showing, or even allegations, of prejudice or possible injustice resulting to defendant by reason of the fact that the indictment was found by the second grand jury. And we cannot imagine any special prejudice that would result to him therefrom, or that the fact in any manner would work injustice. The courts, we think, are beginning to turn their faces from all technical objections made in criminal cases, and from all complaints of irregularities and non-compliance with forms from which no prejudice or injustice could result to the accused. It is well that this disposition now exists, and it is to the discredit of the administration of the law that it has not been exhibited in years gone by.

2._. evi. afohaufcter1" who oompétentto testily to. III. A witness who has known defendant well, and has resided in the town where he was raised, testified, in response to a proper question, that his general moral character was bad. This evidence was objected to on the ground that it was “ incompetent, immaterial, ° , , ,,. „ , , - . , . . ’ and not rebutting;” and that the impeaching witness must show — which was not done in this case — that he knew the reputation of the witness in the neighborhood where he resided. The Code, § 3649, provides that “ the general moral character of the witness may be proved for the purpose of testing his credibility.” The evidence in question is competent and material under this provision.

IN. If the word “ character ” used in the section quoted means reputation, we are authorized to believe that the witness used the word in that sense. Indeed, it is commonly so used in conversation. The witness shows that he had known defendant well for many years, — ever since he was a small boy; inferentially showing that he was acquainted with defendant’s “character” or “reputation” among his neighbors.

3__. _. timea fin-’ ror^vitiiout1" prejudice. Y. An instruction of the court directed the jury that the character and reputation of a witness in the community “where he resides, or has resided,” may be considered “for the purpose of affecting hiscredibilRy-” This instruction is objected to on the ground that it permits evidence of reputation in all communities where the witness has resided. Evidently, if the evidence is confined to a recent period, it is competent, and the instruction, probably, ought to have been so limited. If the instruction is erroneous in this respect, the witnesses impeaching -defendant all show that they knew defendant well for a great many years, and up to the time of trial, and lived in the county of his residence. No prejudice, therefore, could have resulted to defendant from the error in the instruction, if there be error in this regard.

dicfment ;U" sonde?*per‘ frauded. YL It is next insisted that, as the indictment does not show to whom the forged paper was uttered, the conviction cannot be supported. But the objection was not ma^e except upon a motion in arrest, and no question was made as to the party to whom the paper was uttered. He was the party defrauded by the forgery, and it was not necessary to set out his name in the indictment. Code, § 4313. See State v. Maxwell, 47 Iowa, 454. This court has held that an indictment for forgery which fails to allege the name of the person to whom the forged instrument was uttered is good. State v. Stuart, 61 Iowa, 203.

YII. We are of the opinion that the evidence sufficiently supports the conviction.

The foregoing discussion disposes of all questions in the case.

Affirmed.