State v. Schill

27 Iowa 263

• Court: Supreme Court of Iowa
• Decided: June 14, 1869
• Status: Published

Opinion

Dillon, Oh. J.

i. ceiminax, liAw: indict-meat: penury, Bespecting the first and second grounds of demurrer, as it is certain the court should not, and probable that it did not, sustain them. 7 7 we need not discuss them at length. Rev. §§ 4648, 4659.

As to the fourth ground of demurrer : It will be seen by reference to the indictment, that it alleges that the grand jury were investigating a charge against one Wm. Meyer, a justice of the peace, for oppression in office (an indictable offense under the statute); that they had authority to make such investigation; that the defendant was duly sworn by the foreman of the grand jury (he having power under the statute to administer oaths), and it is specially alleged that the defendant “ took his corporal oath the truth to speak concerning the matters charged against the said William Meyer.” This, together with the defendant’s testimony, which is set out in the indictment, shows with all the certainty required by the statute (Rev. § 4659) that the defendant’s evidence before the grand jury “ was of and concerning the matter charged against the said William Meyer.” This ground of objection to the defendant is, therefore, untenable.

s _perjury - indictment, The third and fifth grounds of the demurrer are kindred in their nature and may be considered together. It is to remembered that the defendant is indicted for perjury. The third ground of demurrer proceeds upon the notion that it is necessary to set forth the facts constituting the offense of official oppression on the part of Meyer with particularity.

The fifth ground of the demurrer assumes that the testimony given by the witness before the grand jury, in order to subject him to an indictment for perjury, must have been such as to show that the officer was really guilty of the offense of oppression in office. In an indictment for the latter offense the facts showing the offense must, of course, be stated. In an indictment for perjury, however, while it is necessary to state when and where the false testimony was delivered, so as to show that it was before a tribunal or officer created by law, and in regard to a matter in which an oath is authorized or required by law, and while it is necessary to state with particularity the testimony which was given, its falsity and its materiality, it is not necessary to allege that the party charged with the offense under investigation by the grand jury was or was not guilty thereof, and, of course, not necessary to aver (as the demurrer erroneously supposes) the facts constituting such offense, and that the person accused was guilty thereof.

3^ — ^penury jury. That this must be so will be manifest by a few considerations : The grand jury is, by the law (Rev. ch. 197), endowed with the power and charged with the duty of inquiring into all indictable offenses committed, or which may be tried, within the county. § 4626. It is their duty to inquire. They cannot tell in advance of inquiry whether in fact an offense has been committed or who committed it. They can only act upon testimony given under oath by witnesses produced, sworn and examined before them, or upon legal documentary proof. § 4627. That perfury may be committed by willfully giving false testimony, 6f a material character, before the grand jurjr, is evident, and is recognized by the statute. §§ 4271, 4639, 4640; and see State v. Fasset, 16 Conn. 457; Thomas v. Com, 2 Rob. (Va.) 795; State v. Offutt, 4 Blackf. 355. Official oppression is made an indictable offense. Rev. Sec. 4305. It was the right of any citizen to prefer against William Meyer a charge of official oppression. It would then be the duty of the grand jury to inquire into the truth of the accusation. They may or may not find the charge to be true; may or may not find a bill. They may get a portion of the facts from one witness, and all the facts necessary to enable them to form their conclusion may come from many witnesses. Iiow can this body discharge their duty of inquiring and true presentment making, unless witnesses are bound to tell the truth in respect to any matter which the body has the power by law to investigate ? It is not the practice in this commonwealth for the State’s attorney to prepare a bill in advance and submit it to the grand jury. They investigate, call witnesses before them, elicit all the facts, then determine whether they wall find a bill, and, if so, for what offense. The State’s attorney is then ordered to draft it. The defendant might be guilty of perjury before the grand jury, though Meyer was innocent of official oppression, and though, in fact, no such offense had ever been committed by him.

It is alleged in the indictment that the grand jury were investigating a charge of official oppression against William Meyer; that they had lawful authority to investigate that charge; that the matters sworn to by the defendant (which are particularly stated as well as their falsity) were material in the investigation then proceeding before the grand jury, etc. On demurrer, these allegations are to be taken as true. They show that the oath was before a tribunal and in a proceeding authorized by law.

Without more particularly going into an examination of the requisites of an indictment for perjury committed before a grand jury (see at common law, Regina v. Hughes, 1 C. & K. 519; Whart. Prec. Ind. 313), we are of opinion that under our statute, modifying the common law strictness (Rev. ch. 199) and under our practice, the indictment, in the case now under consideration, was sufficient, as respects the various objections set down against it in the demurrer.

The judgment of the District Court is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed.