State v. Pierson

216 N.W. 43, 204 Iowa 837

• Court: Supreme Court of Iowa
• Decided: November 15, 1927
• Status: Published

Opinion

Morling, J.

I. The judges of election of one precinct placed on the grand jury list their three names, contrary to Section 10867, Code of 1924. When the list was presented to the board of supervisors at the meeting held to canvass the votes, the names of the three judges were stricken from it, and the namés of three other persons substituted, one of whom served on the grand jury returning the indictment now before us. The new names were selected by the supervisor for the district including the delinquent precinct. The substitution and the reason for it were called to the attention of the board. No record of the change was made in the board minutes. The members of the board of supervisors signed the list. The approval of the board, signed by the chairman, was indorsed upon the list. The list was stamped “filed,” with the date and signature of the auditor. There is no contention that the list was not recorded in the auditor’s office. The clerical work of striking the three names and writing in the names of the three substituted was done by the deputy county auditor. Section. 10868, Code of 1924, provides :

“If the judges of election in any precinct fail to return any list as provided in the preceding section, the board of supervisors shall, at the meeting held to canvass the votes cast at such election, make and certify such list or lists for the delinquent precincts, and the auditor shall file such certified lists in his office and cause copies thereof to be' recorded in the proper election' books. ’ ’

Defendant argues that the change was made by the deputy county auditor, and not by the board. The evidence is to the contrary. It is immaterial who did the clerical work. That the selection (or more properly, the nomination) was made-by one supervisor, is immaterial. The board adopted it, and . the amendment, to the list was the act of the board. That the board acted, is clearly shown, and its action ought not to be annulled because it caused no entry thereof to be made in the minutes of its proceedings. At the oral argument, stress was laid on the use of the words “any list”.in Section 10868: .

“If the. judges of election in any precinct fail to return any list as provided in the preceding section, the board shall * * * make and certify such list, or lists for the delinquent precincts.” ■

By the preceding section, 10867:

. ■ “ The judges of election of the several precincts shall make selection of the requisite number of persons to serve as grand and petit jurors, and of talesmen, if any, and return separate lists of the names so selected * * * but.shall not place on said lists the name of any person described in Section 10860, or judges or clerks of the election.”

The failure spoken of is not merely a failure to return a physical document, but “any list as provided in the preceding section.” The preceding section prohibits the placing on .the list of the names of those who are by the statute disqualified. A list in violation of the express prohibition of the section is not a list .“as provided” therein. The judges of election are required to make two, .and.- in case of some precincts, three, jury lists. The grand-jury list is not the only one to be returned. The .word “any” has different interpretations. • In the Century Dictionary, one definition .is: “In the singular, one, a or an, some * * * .” See, also, 1 Words & Phrases 412. It may mean one of a number. Idem.

Qualified and disinterested jurors, grand and petit, must be available for the trial courts. The policy of the law is that jurors should be drawn from all parts of the county (or judicial ..division). To that, end, an apportionment among the precincts is required. The substance-of- the requirement is that lists of qualified persons drawn from all .precincts on the basis of the apportionment, made up by disinterested persons, shall be prepared and filed, ready for. use. in drawing jurors. Primarily, the judges of election are required to make the lists apportioned to their precinct, and from qualified persons,- and on the apportioned basis. Judges of election know little of the statutes or of legál formalities, and are quite likely to be more or less inattentive to their ■ printed instructions. It might very easily happen that their failure to attend to the qualifications of jurors would result in leaving one or more precincts largely, if not wholly, unrepresented on the grand and petit jury lists for two years, and the distribution of jürórs thereby disturbed. The existence of a correcting-body is not only desirable, but quite necessary. None is provided for, unless it is the board of supervisors. We think it would be too narrow a construction of Section 10868 to say that it gives no authority to the board to make a list if-a purported one, or merely physical document, is returned,- though it obviously' disregards the requirements of Section 10867. When the judges of election placed their own names upon the list, they'thereby violated the prohibition of that section. The list was not such a one “as provided” therein.

“The object of the statute is to prevent frauds, and to insure the proper and legal selection of sound' and discreet persons to serve upon the jury.” State v. Ansaleme, 15 Iowa 44.

See, also, State v. Pierce, 90 Iowa 506; State v. Heft, 148 Iowa- 617; State v. Carter, 144 Iowa 371. Informalities not 'prejudicing the accused will be'disregarded. Idem. We are required to “examine the record, without regard to technical errors or' defects which do not affect the substantial rights of the parties, and render such judgment on the record as the law1' demands.” Section 14010, Code of 1924. This'is applicable'to objections to'g’rand jurors. State v. Pierce, 90 Iowa 506. in State v. Walker, 192 Iowa 823, and State v. Spangle, 193 Iowa 1001, the county auditor placed in the'jury list names selected by himself. It was held that he had no authority to do so; that this was the function of the board of supervisors. The cases are not in point here. The indictment was not invalid because of the. change in the jury list.

’• II. In the process-of proving insolvency of the bank, and defendant’s knowledge' of it, it was shown that there was a “shortage” of $6,000 in the account of the town of Afton with the bank. The defendant was the treasurer of the town. One of the sheets of the bank ledger account with the - town, showing credits, was missing, with the result that a liability of the bank’s of $6,000 to the town was not shown on the bank .books. There was also evidence that United States bonds to the amount of $15,000 were carried on the bank’s books as an asset, but no bonds.were found when the bank closed. Reports .made by defendant did not show the $6,000 liability. They did show the bonds as an asset. The tendency of the evidence -was to raise an inference that defendant had -embezzled the funds of the town and the bonds, and had made false reports. Defendant offered to prove that he had been indicted for. the embezzlement .of the $6,000, and had also beep indicted for making false reports in listing, in the assets the $15,000 of bonds, and in omitting from the liabilities the $6,000 owed the town, and that he was- tried on those indictments and acquitted. The evidence was excluded. We think it should have been admitted. Evidence of the shortage and of carrying and failure to find the bonds was admissible on the question of insolvency and defendant’s knowledge of it; but that such evidence, without the proof of the former acquittal, might, in the minds .of the jury, raise ;an. inference of guilt of embezzlement and of making false reports, and that such inference would be damaging, if not fatal, to the. defense, is too. clear to need demonstration. That the State, by the reception of its evidence and the exclusion of the evidence of acquittal of the crimes of embezzlement and making false reports,. acquired an unfair advantage, and the defendant was thereby unfairly placed at a great disadvantage, is obvious. It is-elementary that-the accused may not be again tried for an offense of which he has been once acquitted. Indirectly, the defendant was put-on trial a second time on each of the charges on which he had been formerly acquitted. He should no more be put in jeopardy a second time by indirection under an indictment for another ■ offense than on a direct indictment for .the -same • offense. The evidence of the former acquittals'should have been received. Mitchell v. State, 140 Ala. 118 (37 So. 76, 103 Am. St. 17).

III. The indictment was for receiving a deposit- ■ from “Charles Coen, a member of the-firm of Coen & Coen, a co-. partnership, which copartnership was the owner of the money, bills, checks, and notes so deposited.” M. D. Coen, another member of the firm, was a director of the bank, and present at meetings of the board shortly before the bank closed, at which the affairs of the bank were gone over. The defendant requested the court to charge the jury:

“If the jury believe from the evidence that the deposit charged in the indictment, as made by Charles Coen, was a deposit of funds of the firm of Coen & Coen, a partnership, of which M. D. Coen, a director of the bank, was a member, and that said deposit was made by and with the advice, knowledge, and consent of M. D. Coen, a member of said firm, and if the jury further believe from the evidence that said M. D. Coen was at that time a director of said State Savings Bank of Afton, Iowa, and then and there had full and complete knowledge of the conditions of said bank, as to its solvency or insolvency, that then the defendant, in receiving the said deposit in question, could not be guilty of the crime charged, because the depositor was in no way deceived or misled in making such deposit. ’ ’

The court refused this instruction. The defendant argues that the essential element of the crime charged is fraud, and that, if the depositor is not deceived, it is no crime to receive his deposit. We need not pause to discuss this proposition. That the ruling was correct, we think admits of no doubt. The partnership was an entity, distinct from its members. The funds deposited belonged to the partnership, and not to the director of the bank. The ultimate interest in the partnership funds belonged, in greater or less part, to others than the director member. To the extent of their interest, the deposit was not that of funds belonging to him. He might have been fully informed of conditions, and have fully consented to the bank’s receiving the deposit; and yet, as between his interest in the firm and his interest in the bank, it might have been, in his opinion, to his interest that the bank should receive the deposit. The fact that he was not deceived or misled in making the deposit ought in no wise to exculpate the defendant from receiving on deposit funds of the partnership or the interest of the director’s copartner therein.

IV. Among the grounds for new trial were alleged misconduct of jurors and coercion of a verdict by the court. These questions are uot such as are likely to arise on a new trial, and therefore need not be discussed. We may say, however, that no error in either of these respects appears. — Reversed.

Evans, C. J., and Faville, Kindig, and Wagner, JJ., concur. De Graff, J., concurs in result. Albert, J., dissents as to Division I.