^fatc lliiilicrsitii iif .3lci(iia 
 
 iCadi Xiliraru 
 
 N„ 582:^7 
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 'X.
 
 k^ 
 
 M^. 
 
 CASES Oil CRIMINAL PROCEDURE 
 
 SELECTED ITIOM THE DECISIONS OP THE 
 
 SUPREME COURT OF JOV/A 
 EY 
 
 ROLLIN :i. p:z;kkiiis 
 
 i^' 
 
 Professor, of Law in the State 
 University of Iowa 
 
 VOL. I 
 
 Mimeocraphed by 
 EDWARDS BROTHERS. AM ARBOR, MICHIGAN, 
 
 Copyright 1920 by Rollin M. Perkins 
 
 • •*'■
 
 T 

 
 -5^3327 
 
 TABLE OF CONTENTS 
 
 CF VOLUI'fflS I '^ II 
 
 PART Oils 
 
 The Limitarlons of Prosecution. 
 
 CHAPTER J 
 
 Page 
 
 Jurisdiction . - • -'- 
 
 Section 1. The Extent of the Authority of the State 1 
 
 Section 2. Exti-adit ion ^ 
 
 Section 3. Ver.ae ^^ 
 
 Section 4. Courts ^^ 
 
 C?AP'iEP II 
 
 Statute of Limitc-tions ^^ 
 
 CK/TTER 7. II 
 
 Former Jeopardy , ^^ 
 
 PART TWO 
 Proceedings Preliminary to Trial 
 CILAPTEK IV 
 
 Steps ^y tne Ctate Prior to Indictment 56 
 
 Section 1. Introduction ^° 
 
 Section 2. The Complaint ^"^ 
 
 Section 3. The Warrant ^^ 
 
 Section 4- Arrest °^ 
 
 Section 5. The Preliminary x.xamj nation and Sumiary Trial of 
 
 Nonindictable Offense.! '^^ 
 
 v(a) The Preliminary Examination ^^ 
 
 ■(h) The Summary Trial of Nonindictable Offenses 73
 
 Section 6 . Discharge , Coramitment and Bail 91 
 
 CHAPTER V 
 
 The Indict:nent S3 
 
 Section 1. The Finding and Presentation by the Grand Jury .. 93 
 
 Section 2. Pom and Contentsn 104 
 
 (a) The Caption and the Commencement 104 
 
 (b) The Accusation 107 
 
 ( 1 ) In General 107 
 
 (2) Certainty of S-catement 112 
 
 (3) Name and lescription of the Lefendant 117 
 
 (4) Time and Place 120 
 
 (5) The Gist of +hc Offense 128 
 
 (5) Lescription of Third Persone and of Property 136 
 
 (7) Written Instruments or Papers 143 
 
 (8) Intent, Knowledge etc 146 
 
 (9) Statutes 152 
 
 (c) The Conclusion 161 
 
 { d) Signatures and Indorsements 162 
 
 Section 3. Joinder of Offenses 173 
 
 (a) Duplicity 173 
 
 (b) Joinder of Courts 180 
 
 (c) Election 185 
 
 onction 4. Joinder of Parties 18C 
 
 Section 5. Amendments 195 
 
 CHAPTER VI 
 
 The Information 200
 
 CHAPTER VII 
 Steps By the State After the Indictment 204 
 
 . Section 1 . The Arraigmnent 204 
 
 f 
 Section 2. Motions 205 
 
 Section 3 . Demurrer 206 
 
 Section 4. Nolle Prosequi 206 
 
 CHAPTER VIII 
 
 Steps By the Defendant 207 
 
 Section 1 . Bail 207 
 
 Section 2. Habeas Corpus 221 
 
 Section 3 . I'otions and Petitions 228 
 
 (a) To Set Aside the Indictment 228 
 
 (b) To Change the Place of Trial 236 
 
 ( c) For ether Purposes . 242 
 
 Section 4 . Demurrers 242 
 
 Section 5. Pleas 246 
 
 (a) In General 246 
 
 (b) Pleas Hot Used Under the Code 247 
 
 (1) Plea to the Jurisdiction 247 
 
 (2) Plea of Sanctuary 247 
 
 (5) Benefit of Clergy ., 248 
 
 (4) Plea in Abatement 248 
 
 (5) Plea of Nolo Contendere 249 
 
 (6) Plea of Agreement to Turn State's Evidence ... 249 
 
 (7) Plea of Pardon 249 
 
 ( c ) Picas Under the Code 250 
 
 (1) Plea of Guilty 250 
 
 (2) Plea of Not Guilty 250 
 
 (3) Plea of a Former Judgment of Conviction or 
 Acquittal of the Offense Charged 251 
 
 Section 6 . "vVaiver 252
 
 lOV/A CASES 
 
 OIT 
 
 CRIMINAL PROCEDURE 
 
 PART I 
 
 THE LmiTATIONS OF PROSECUTTCIT 
 
 CHAPTER I 
 
 JUP.ISDiCTIOiT 
 
 Section 1 . 
 
 The Extent of the Authority of the State. 
 
 Criminal Prosecutions are subject to limitations of three 
 distinct kinds: namel y. j uri ^ 1 rtJiny laps e of time and _..fp_rmer 
 j e opar dy . — 
 
 ■Tii rtfldiction is th e power to hear a nd_ deter mine a cause 
 oX_§XLt.ion! in a %-ery ^ewWMul — wdj;" ' .;L uue- '^tTie V.OTd Jurisdi ct ion 
 first, |iJ;o mean the scope of authority of a state; and second, 
 withirrthe statej^t^o signify the scope of authority of its 
 various tribunals. To have jurisdiction over a criminal pros- 
 ecution means to have power first, to inquire into the facts; 
 second, to apply the law to the facts; and third, if the lav/ as 
 a-oplied to these facts requires it, to pixnounce the appropriate 
 sentence. Any given court may lack these pov;ers either because 
 they are not within the judicial machinery of the state at all, 
 or because they are lodged e:cclugively in some other part of 
 this machinery. If any such question arises we have first to 
 decide whether the state has the pov/er to tr\- the accured for 
 the alleged crime. 
 
 State V. Moyers 
 
 Supreme Court of Iowa, 1912. 155 lov/a 678. 
 
 In a prosecution for uiilawfully using nets in the waters of 
 Iowa it appeared that the defendant "had taken fish with a net 
 from that portion of the Mississippi river lying east of Des 
 Moines county without having first procured a license under the 
 laws of this state, but there was a conflict in the evidence as 
 to v/hether the act was done west or east of the center of the 
 main navigable channel of said river." 
 
 5263
 
 The Extent of the /.uthority of the State 2 
 
 McClain, G. J.. - In the provisions of the Code regulating 
 the talcing of fis'h in the waters of the state there is a general 
 exception excluding the waters of the Liississippi river (and 
 certain other boundary rivers) from such regulations. Code, sec- 
 tion 2547. But in 1909 a statute v/as enacted providing that in 
 the boundary rivers thus enumerated there should be no fishing v/ith 
 nets or seines without first procuring from the fish and game • •• 
 wai'den of this state an annual license for the use of such nets and 
 seines, the license fee being fixed by the statute, and the taking 
 by any person of fish of a certain description fron said rivers 
 e::cept by hook and line during a specified portion of the year was 
 also prohibited. See chapter 155, 'Acts of 33d General Assembly, 
 as amended by chapter 117, Acts o4th General Assembly. Prior to 
 the enactment of these statutes^ lihe lav/s of the state regulating 
 fishing were not applicable to the navigable boundary rivers of the 
 state v/hich were subject to the concurrent jurisdiction of adjoin- 
 ing states. Little v. Green, 144 Iowa, 492. In the statutes last 
 cited this st at e has at t empt ed for the first time to regulate fish- 
 ing in these boundary rivers, and the question now presented is 
 whetjl er the state nay leg islate in regard to fishiog^in such^ 
 ri-»£rs!!! ^iTi t he "j sxercisje'oT'^tS ^ ^ v es±-ed__iii_iij 
 
 that is to sajr^ Tine "question is v/hether, in the exercise of such 
 concurrent jurisdiction, the state may regulate the taking of fish 
 in the Mississippi river and punish a violation of its statutes, 
 although such violation is committed beyang the niriflLg cfthg> main 
 navigail..g_chs-aael of suchlriver, the middle of the navigable channel 
 being the boundary line betv/een this state and the state of 
 Illinois. See preainble to the Constitution, v/herein the boundaries 
 of the state are described in accordance with the act of Congress 
 admitting the state into the Union. 
 
 The concurrent jurisdiction of this state over the waters 
 of the Mississippi river without regard to the boundary line be^ 
 tween this state' and any adjoining state v/hich is asserted in Code, 
 section 3, is dependent upon the act of Congress admitting the 
 state into the Union, which contains the following provision: "The 
 said state of Iowa shall have concurrent jurisdiction on the river 
 Mississippi and every other river bordering on XJie said state of 
 Iowa, so far as the said rivers -siiall form a common boundar;,- to 
 said state, and any other state or states nov/ or hereafter to be 
 formed or bounded by zhe same; such rivers to be common to both." 
 Act March 3, 1845, chapter 48, 5 Stat. 742, amended as to boun- 
 daries by Act Aug. 4, 1846, chapter 82, 9 Stat. 52. A similar pro- 
 vision was found in the statute for the admission of the state of 
 Illinois (Act April 18, 1818, chapter 67, 3 Stat . 429). and the con- 
 current jurisdiction of lov/a and Illinois over the Mississippi 
 river so far as it constitutes the boundary between the two states 
 is dependent upon these provisions. In applying them it has been 
 held by this court that the jurisdiction of this state does not 
 extend to abatement of a nuisance on the Illinois side of the river 
 
 5263
 
 The Extent of the Authority oi" the State 3 
 
 consisting of a pernianent structure en that side (Gil bert v. Molinc 
 ■Vater Power & IiiLfK. Co., 19 Iowa, 519; huck v. Elienbol t. 84 lo'.va, 
 394), but doec extend to a criminal nuisance committed on a coat 
 in the river, although such boat v/as at the time moored to the 
 Illinois shore; State v . Mullen, 35 lov/a, 199. The case last cited 
 irj relied upon bv tlie state as sustaining its jurisdiction to regu- 
 late the takine-; of fish in the waters of the river in any portion 
 thereof between the lov/a bank and the Illinois bank of the strear.. 
 And it must be conceded that this contention is strongly supported 
 by the case last cited; fo*-, if the Legislature of Iowa may by 
 statute determine what is a nuisance and provide for the punishment 
 of a violation of such statute committed anyv/here on the v/aters cf 
 the river between the tv/o states, tHen it may prescribe wA-t shall 
 constitute the unlawful takin g 6"f fish in riny portion of the river 
 and punish the violation of such statute, although committed out- 
 side of the boundaries of the state, tiiat is, east of the middle 
 line of the main channel. On the other hand, it must be admitted 
 that a serious question is here involved, for, if the contention 
 of the state is to be sustained, then those persons v/ho on the 
 Illinois side of the river engage in the business of fishing in 
 full compliance v/ith the lav/s of Illinois may nevertheless be 
 subject to punishment if they have not als^o complied v/ith the lav;s 
 of lov/a. Taking this case for an illustration, and assuming that 
 there is a statute in Illinois similar to that of tnis state re- 
 
 le 
 
 by the laws of that state would still be punishable under the lav/s 
 of Iowa if he had not complied v/ith our statute by paying the 
 annual license req,uired by the lav;s oi this state. 
 
 Court 
 
 222 (93 N. W. 1111, 65 L. R. A. 9537"^ In tnat case ti'.e conclusion 
 of the majority of the court v/as that, under provisions as to con- 
 current jurisdiction similar to those involved in our own case of 
 St at e V . Mul 1 en, the states of Minnesota and .'/isconsin ccvJd reg- 
 ulate fishing in that portion of the Mississippi river forming the 
 boundary between the two states only so far as the v/3.ters of the 
 river were v/ithin the actual territori al l imits o'f the state; that 
 is to say, the right to regulate fishing on the west side of the 
 center of t^he channel v/as exclusively in the state of Minnesota, 
 while the right of regulation o n _t he east side of that imaginary 
 and uncertain line v/as exclusiveljr__in the state of .Visconsin. In 
 the majority opinion an attempt is made to define concurrent jur- 
 isdiction as relating " to matters at least in seme v/ay connected 
 with the use of the water for navigable purposes, to things afloat, 
 or in some legitimate sense on the water - things diffic-ilt to 
 deal with if it vere necessary to detenriine in each instance of 
 the exercise of jurisdiction the precise location of the particular 
 act involved as regards the boundary lin^ " v/ith the result that 
 "it does not include tlie right tc regulate the enjOT?:iient, by the 
 people of one state v/ithin its domain, of the right to navigate or 
 
 5263
 
 The Extent of the Authority of the State. ^ 
 
 fish. It does not empov/er one state to spread its mere police' 
 regulations over territory of another, regulating the sovereign 
 property right of the latter in or to the v/at er flowing over such 
 territory, or to. the fish therein or fov/ls therecn, v;hich it holds 
 in trust for the enjoyment of the whole people v/ithin its boundar- 
 ies, in their individual capacities, imder such legal restraints 
 as such other, in its legislative wisdom, nay see fit to ir.pose, 
 so long as such enjojment dees not interfere unlawfully with like 
 enjoyment by the people of the state on the opposite side o f the 
 boundary." But in the dissenting opinion attention is called to 
 the impossibility of distinguishing between c rimin al and police 
 legislation of the state addressed to the subject of_ catching or 
 d< 
 
 01 
 
 tending over the boundary v/aters and the enforcement thereof in 
 the manner prescribed by such legislation, whether by courts or by 
 executive officers. 
 
 i-f* 
 
 In short, we reach the conclusion that the views expressed 
 by the majority of the Supreme -Court of 'A'isconsin in the case o; 
 Roberts V, Fullei-ton are inconsistent t/ith those expressed by 
 tnis court in State v. IJullen. supra, and aga i nst t he s ub st ant i al 
 weight of authority, f^ae trial court- erred, therefore, in making 
 the conviction of the defendant in this case dependent upon^ a 
 finding of the jury that th'e'act v/hich he v;e^ c hg, rg ed with having 
 committed in violation of the, lavre of the dt at e with regard to 
 fishing was coi:nnitted on tlaat portion cf the liississippi ri^er 
 west of the boundary line of the state. 
 
 Reversed 
 
 State V. Bennett . 
 Supreme Court of Iowa, 13^2^ 14 Iowa 479. 
 
 "The defendant -.vas indicted for stealing a horse. The court 
 below charged the jur^*-, that if the horse was stolen by the de- 
 fendant in the State of Missouri, and brought by him into Vfepelic 
 county, that he might be indicted and convicted in thi<? state. This 
 ruling is the error assigned." 
 
 Baldwin, C. J 
 
 Mr. BishoTD, in his late work on Criminal Lav/, refers to the 
 conflict of authorities on this question, and showc: clearly the 
 fallacy of the reasoning of the judges who hold that, the courts of 
 the St?te to which the stolen property has been taken cannct take 
 jurisdiction of the offense. He says: 
 
 5263
 
 The Extent of the Authority of the State. 5 
 
 "Our courts can try all offenses against our la-vs, and if a 
 man has property in his hands here, they can inquire wliat legal 
 relation he sustains to this property; and if it came v/ith him 
 from a foreign country, the relation he sustained to it thez-e 
 establishes his relation to it he;:^. This is familiar lav;, undis- 
 TDUted, practised upon daily in all our tribunals in the ordinary 
 matters of litigation. The proposition that a rnan is to escape 
 punis}ament for the violation of our laws because he first I'-iclated 
 the laws of a foreign country, is absurd in itself, and mischievous 
 in its practical application. Nothing is plainer than that v/hen 
 a man is found here wit2L,Pi'<^ps^y. ° ^-^?U.2£}iH^-l-— '^^^Lt i^iquire after 
 the owQQX—JOX^it, equally7wh ether such'oT7n^r''TsaTreged to be' a 
 fareigner or citizen, present pei'sonally or absent, nothing is 
 plainer than that our Courts will protect the right of property 
 equally whether the property is in the owner's grasp, or \';rongfully 
 found in the grasp of the felon. And no principle is better estab- 
 lished as a general doctrine than that any physical removal, how- 
 ever slight, of the entire physical substance of the thing alleged 
 to be stolen, to v/hich physical substajice the remover has not th_e 
 right of possession, even though he has it in his custody, lawfully 
 or unlawfully, is, where the felonious intent exists, larceny. If, 
 therefore, the complete offense is not committed here, by one bring- 
 ing here from a foreign country personal goods v/hich he has there 
 stolen, using them here as his own, meaning at the same time here 
 to deprive the owner of his ownership therein, then it is impossible 
 for any man, under any circ-jmstances, to do acts completely falling 
 7/ithin all the descriptions and definitions given in the bocks of 
 this offense." 
 
 In answer to the objection that it renders the prisoner liable 
 to be twice convicted and punished for one offense, in violation of 
 the spirit of the common law, the author says: "The common lav/ 
 either admits of tv/o convictions, in such a case or it does not; if 
 it does, there is nothing in tfib objection; if it does not, then 
 the first conviction, in what e^/er locality it takes' place, may be 
 plead in, bar of the second. The common law, hov/ever, knov/s no 
 such plea in defe'tf^e of a prosecution as liability to an indictment V 
 elsewhere ." ' /^ 
 
 1 Eish. Grim. Law, 596, 597. 
 
 Affirmed. 
 
 526 3
 
 /
 
 Section 2. 
 
 Extradition 
 
 If the state in which the accused is found has not' the power 
 to trj*- him for the crime of which he is accused, the question 
 arises whether the state or nation in which such person could be 
 tried for the offense, has the ri^ht to aak the first state to 
 arrest the accused and deliver hin over to the second state for 
 trial by it. The surrender of an accused person in this way is 
 called ext radition : and where it is between the states of the 
 Union it is frequently referred to as i nterstate renditio n. The 
 demand for extradition is called a requisition. 
 
 St at e V , xluf f o rd , 
 
 Supreme Court of Iowa, 1869. 28 Iowa 391. 
 
 A person was arrested in this state as a fugitive from 
 justice on the charge that he had, committed murder in Illinois, 
 He was taken before a justice of the peace v/here he entered into 
 a bond for his future appearance. Upon default, suit was brought 
 against him and his sureties upon thig, bond. From a judgment for 
 the plaintiff, the defendants appealed. 
 
 Beck. J. - The cause was tried upon the following evidence: 
 1. The info imat ion upon which the warrant was issued. It charges 
 substantially that defendant, Jeremiah Hufford, is guilty of the 
 crime of murder in the second degree, committed in Knox county, 
 Illinois, by producing an abortion upon one L .1 . Strayer, a 
 pregnant woman, which caused her death. It contains.no averment 
 that the accused is charged v/ith the crime in the county and State 
 where it was committed, and'^contains nothing further than the alleg- 
 ations of the commission of the crime by the accused, and the place 
 time and manner of its commission. 2, The warrant in the usual 
 form, 3, The docket of the justice before v/hom the proceedings 
 were had, showing the issuing of the warrant, the arrest and custody 
 of the accused, his ap-olication f o r a continuance of the examina- 
 tion, the order tlierefor, the approval of the bond, the defa^olt of 
 the accused, and the forfeiture of the bond. 4. The bond sued upon 
 5. The testimony of the justice that no other format ion, affidavit, 
 evidence, statement or paper of any kind was presented to or filed 
 with him in the proceedings, 
 
 v/e find in the record the deposition of a v/itness, who testi- 
 fies that he was, at the time the alleged crime was cominitted, 
 the coroner of Knox coun-^, Illinois, and that he held an inquest 
 upon the body of a v/oraan named L,L. Strayer, then deceased. He 
 states the facts of the impaneling of a jury, the exam.ination of 
 witnesses as to the cause of the death of the woman, and that the 
 jury rendered a verdict that death was caused by an abortion pro- 
 duced by the accused. He sets out in his deposition a copy of the 
 
 5263 ■ "
 
 Extradition. 7 
 
 verdict. This deposition, v/ith that of another v/itness, v;as 
 suppressed, because, as the court held, the evidence contuined 
 therein v/as irrelevant, immat erial and Recondarj'-. ITo object ion v/as 
 made to this ruling by the plaintiff. We cannot deternine the 
 sufficiency of this evidence, nor could v/e, should it be held 
 sufficient, consider it, as it v/as excluded by the court, \.'ithcut 
 objection. *" 
 
 These depositions answer no useful purpose in the record, 
 further than forming the basis of a supposition that evidence may 
 exist, not used upon the trial, that the accused was, in Illinois, 
 legally charged by the verdict cf a corcner^s jur\' v/ith the offense 
 for vahich he was arrested. 
 
 The proceedings v/ere instituted under sections 4523^ 4523 < 
 the Revision, The first of the sections is in the follov/ing wor< 
 
 of 
 irds 
 
 "If any person be found in this State charged with any crine 
 committed in any other State or territory, and liable by the Consti- 
 tution and laws of the United States, to be delivered over upon the 
 demand of the governor thereof, any magistrate may, upon complaint 
 on oath, setting forth the offense and such other matters as are 
 necessary to bring the case v/ithin the provisions of the law, issue 
 a warrant to arrest such person." The other sections provide, that 
 if it is found upon examination that there is reasonable cause^to 
 believe the complaint true, and that the accused may be la'wfuliy 
 demanded of the governor, he shall, if not charged with murder, ^be 
 required to enter into an undertaking to appear before the magis- 
 trate at a future day, and abideliis order. 
 
 The undertaking is forfeited by a failure to appear according 
 to its conditions. It was ruled by this court in this case (23 Io\va, 
 579), that, under the provisions of the statute above cited, the 
 jurisdiction of the magistrate need not appear in the information, 
 but may be presumed upon demurrer to the petition in an action upon 
 the bond, and that the v/ant of juriadiction on account of insuffi- 
 ciency of the proceedings may bo set up as a defense and proved 
 upon the trial • 
 
 It was also ruled, that the accused, being arretted on a charge 
 of murder in the second de^ee, a bailable offense under the lav/ of 
 this State, was, if the magistrate had jurisdiction, properly ad- 
 mitted to bail upon the undertaking which is the foundation of this 
 action. The first question presented for determination is this: 
 Did the magistrate, as showi by the evidence, have jurisdiction in 
 the cacjB? 
 
 The provisions of the statute above cited authorize the 
 arrest of persons "found in this State charged with :?A~iy crime 
 committed in any other State or territorvii and liable by the 
 Constitution and laws cf the United States to be delivered over upon 
 the demand of the governor thereof, " etc. V/e understand from 
 this language, that, tc autlioriae the arrest, tliere must be a 
 
 5253
 
 Extradition 3 
 
 charge pending against the accused in another State cr territory. 
 This construction is nade entirely plain by article 4, section 2 
 of the Constitution of the United States, which is as follov/s: 
 "A person charged in any State with treasoii, felony, or other 
 crime, who shall flee from justice and be found in another State, 
 shall, on demand of the executive authority of the State fron v/hich 
 he fled, be delivered up, to be removed to the St at e hav i ng .ju ris- 
 diction in the cause." 
 
 The act of congress, 12th February, 1793, section 1, providing 
 for the removal of fugitives from justice from a State wh'ere found 
 to the State where the crime was committed, prescribes tiiat the 
 executive authority demanding the fugitive sliall present an in- 
 dictment or affidavit chargin^the accused v;ith the crime, v/ith hir; 
 demand upon the governor of tne Sta^e, v/here the fugitive is 
 found, for his returji,. The provision of our statute, above quoted, 
 provides for the arrest of persons, v/ho "a re liable by the consti- 
 tution and lav/s of the United States to be delivered, " upon the 
 demand of the executive of the State v/here the alleged crime was. 
 committed . The Constitution and statute of the United States, as it 
 appears by the provisions above cited, require the accused to be 
 delivered up when charged v/ith the crime in the State v/hero it was 
 committed. It is quite clear that our statute, being enacted in 
 aid of the foregoing constitutional and statutory requirement of 
 the United States, contemplates that a charge of the crime against 
 the person to be arrested' and delivered up must be made in the 
 State v/here the offense was committed. 
 
 This charge must be made to some court, magistrate or officer, 
 in the form of an indictjjifint, information, cr other accusation, 
 Vno'.vn to the law of the State in v/hich the offense v/as comr.iitt ed . 
 iVe conclude, therefore, that unless the accused in thir case was so 
 charged, the magistrate had no jurisdiction. Bx -parte Smith, 
 3 McLean, 121; S>: parte Cl ark. 9 V/end . 212; Matter of Hay ward, 
 1 Sand:^ 701. ,_ ' 
 
 The evidence upon which this case was tried contains no 
 proof that the accused waschargGd \viththji_cxime in Illinois, 
 v/here it is alleged to have 6^.^n bonwifTed. The jurisdiction of 
 the magistrate is neither averred in the cont)laint or information, 
 nor shov/n by the evidence; it cannot be presumed. V/e must regard 
 the proceedings, therefore, as void, "^ 
 
 It is argued that defendants are estonped to deny the juris- 
 aiction of the justice because they voluntarilv executed th(^ bond, 
 ihe pygpnf nf r^p^^^^^q^ ■l y^ g^ crim inal -proc eeding, will not confer 
 ■-"'^^¥^,g;^iO-V^ 1'i^e voluntary exSfi'dtion of the bene', in this case, 
 could not. If jurisdiction was v/anting, the magistrate }iad no 
 authority to take the bond, for there was, in the view of the law. 
 
 J^nJ^^f •^'"''^J^^'"- l^^ *^^ proceedings therein, including the 
 bond, being void and held i'or rj^ught . 
 
 Reversed. 
 
 5263
 
 Extradition ^ 
 
 Morrison v. Dwer. 
 Supreme Court of Iowa, 1909. 143 Iowa 502. 
 
 The plaintiff, having been arrested under a warrant of the 
 governor directing his surrender to the defendant as agent o the 
 iovernor of Nebraska, petitioned for a write of habeas corpus. Tne 
 |?.lt was denied and the pUii^tiH^EE.^^! ^d , Another ^c%^^^^J•°lJ^^ 
 the same facts was disposed of by the Supreme Court at tne sane 
 t ime . 
 
 I^cClain J. - Requisitions of the Governor of Nebraska for the 
 surrender of the i^etitioners were presented to ^the Governor of 
 Iowa. and. after a^ hearing, by the latter, of whicn no complaint is 
 made except with reference to the sufficiency of the requisition 
 papers wa-rrants were issued for their surrender to tne agent of 
 the state of Nebraska. To lorevent such surrender these proceedings 
 were instituted. The refusal of the, lower court to grant a writ of 
 habeas corpus Ks assailed in this court on three grounds: First, 
 the insufficiency of the comT)laints filed before the county judge 
 in Nebraska, in which each of the petitioners v;as charged with the 
 commission of a crime in that state; second, the insufficiency of 
 the certification of a copy of such complaint by the Governor of 
 Nebraska; and, third, the insufficiency of the evidence to sloow 
 that petitioners were in fact fugitives from justice. 
 
 I. The complaint charging petitioners with the conmission of 
 a crime in Nebraska v;as sworn to by the county attorney of the 
 proper county, and it v/as made to appear that this v/a^s the proper 
 method in that state of charging persons witJi the crime of ./hich 
 petitioners v/ere accusedj^ A complaint or infcrmat ion, duly sv/orn to 
 is such affidavit as i"S"required ** 
 
 proceeding, if it is a proper method of charging the commission 
 of the crime in the state where committed. In re Hooper, 52 Wis^ 
 699 (58 N. W. 741); State v. Ric ha rdson. 34 Minn. 115 (24 N. W. 354); 
 State V. Bates. 101 Minn. 3o3 (112 it. Y/. 261 } . 
 
 Appellants contend that a complaint by a county attorney is 
 necessarily on information and belief, and that such an affidavit 
 is not sufficient. But the complaints in these cases were not 
 sv/orn to as true only on information and belief. The allegations 
 of fact therein are sworn to as true without qualification, and it 
 is not for us to say that the county attorney swore to the truth 
 thereof onl:/ on information and belief. If sufficient in form a 
 court can not inquire as to the knowledge of the affiants ae to the 
 facts, -"^ 
 
 It is further contended tliat the certifications of these com- 
 plaints are not in such form as to entitle them to be introduced 
 and received in evidence in another state, under the state and 
 federal statutes relating to certification of the records of judi- 
 cial proceeding;^ . But there is no merit in this objection. Peti- 
 tioners themselves offered these certifications in e-^idence in the 
 
 5263
 
 Extradition 10 
 
 lower court. The defendants were under no obligation to do riore 
 than shov/ a certification of copies of such^^rnplaints ty the 
 Governor of iJetraska, See Rev. 3t . U, S. section 5278 (U. 3. Comp. 
 St . 1901, 3597) . 
 
 II. Eut it is argued that, if the complaints were not duly- 
 authenticated, they could not be properly certified as authentic by 
 the Governor under the federal statute requiring that he certify 
 the authenticity of the complaints on which the extradition is de- 
 manded. There is nothing in the federal statute specifying how 
 the Governor is to be satisfied tliat the ccniplaints on which he 
 acts are authentic. That is a question for his own determination. 
 His certificate to the fact alone is required^. If the proceedings 
 are regular in form, it is for the person atTacking them to show 
 that he is not a fugitive from justice. M cITichols v. pease, 207 U. S. 
 100 (28 Sup. Ct. 58, 52 L. Sd.l2l); Pierce v. Greecy, 210 U.S. 387 
 (28 Sup. Ct . 714, 52 L . Ed. Ill 3> . 
 
 III. While the petitioners attempted to show by evidence t_hat 
 thej'' were not in Nebraska at the time the crime with which they 
 were charged v;as comm.itted, there v/as ample evidence foi' the de- 
 fendants to prove the contrary. In a pi-oceeding hy habeas corpus 
 the finding of the lower court as to questions of fact has the 
 force of a verdict of a jur;/, and, if supported by any evidence 
 is conclusive upon this court as to such questions, Myer s v. 
 Clearman. 125 lov/a, 451; Dunkin v. Seifert, 12 3 Iowa, 6?. 
 
 Finding no error in the rulings of the lower cou:^ complained 
 of, the action of the court in each case denying plaintiff's peti- 
 tion for writ of habeas corpus is affirmed. 
 
 Jones and Atkinson v. Leonard. 
 Supreme Court of Iowa, 1878. 50 Iowa 106. 
 
 The plaintiffs were indicted in the State of Massachusetts 
 for the crime of false pretenses. The plaintiffs were in this state 
 at the time of the commission of the offense in^assachusetts, but 
 on the requisition of the governor of Massachusetts, the governor 
 of Iowa issued a warrant for the arrest of the plaint if fn^ and their 
 delivery to an agent of the governor of Msissachusetts . The defen- 
 dant made the arrest and the plaintiffs petitioned for a writ of 
 habeas c o mu s . The plaintiffs were discharged from custody and 
 the defendant appealed. 
 
 Seevers. J - The learned judge of the Circuit Court discharged 
 ■t|}e plaintiffs from custody, as we infer, on two grounds: First. 
 that the plaintiffs were not in fact fugitives from iustice, for 
 
 526 3
 
 Ejctradition. 
 
 11 
 
 + ^e T-eason that thev had never fled; £,nd. second, the evidence accom- 
 ^anvinp the reauisition failed to shov; they ".vere sucn; and appellees 
 rpai'niy. if net *enti rely, rely thereon for an afa^mance. It is not 
 c'. 8imed the r)laint4-ffs v/ere ever even temporarily residents of the 
 State of Massachusetts. At the tine the alleged crime was comnitted 
 they 'vere citizens of and residents of this St at^ ^ 
 
 The false pretense was contained in a letter written by then 
 in this State to certain persons in Boston, in '.vhicn it was stated 
 thev ov/ned a large amount of property over and atove their indebt- 
 edness, by means" of which they obtained on credit certain merchan- 
 dise. 
 
 The Constitution of the United States provides that "a person 
 charged in any State vith treason, felony, or other crime, v/ho 
 shall fl ee £ rom justice and be found in another State, shall, on 
 demand of the executive authority of the State from v/hich he fled, 
 be delivered up to be removed to the State having jurisdiction of 
 the crime, •• 
 
 It is rircvided by a statute of this State that the requisition 
 of the Governor of another State "shall be accompanied by sv,forn 
 evidence that the Tsarty charged is a fugitive from justice," Code, ( 
 4174. " '■ ~ 
 
 The sv.om e^/idence accompanying the requisition consisted of 
 an affidavit in which it was stated the plaintiffs "are fugitives 
 from justice." There are grave doubts v/hether such a statement con- 
 stitutes the evidence required by the statute, .Vhether the plain- 
 tiffs were such fugitives is a mixed question of lav/ and fact. The 
 latter being stated or ascertained, a legal conclusion would follow 
 or be based thereon. Instead of stating facts, the affidavit 
 staten nothing more than the legal conclusion of the person making 
 the affidavit. The statute requires the Crovernor to determine 
 v/hether or not the person or -cersons are fugitives from, justice. 
 Sv/orn evidence is to be submitted to him to enable him to do so. 
 Such evidence may be in the foim cf affidavits. But instead of any 
 fa Gt 3 L e i ng s t at ed, upo n whi ch an i nd e-o end ent j udgment co ul d be 
 formed, the Governor must have relied wholly on the legal conclu- 
 sion of anothgTj^^^ 
 
 It seems to us tnat to sanction such a proceeding v/ouid be 
 estaolishing a dangerous precedent. £v issuing his warrant for 
 ^he arrest^ of the plaintiffs it mey be said the Governor has de- 
 termined tnis question. 3ut this does not conclude all inquiry by 
 tne courts as to the sufficiency of the evidence u-con which his con- 
 0- us ion was based. It may be conceded that the affidavit was prima 
 ^^^^^ sufficient, or rather it v/as the -orcvince of the Governor to 
 so determine. But this we do not think is conclusive u-oon this or 
 any other ques-cion connected v/ith the extradition of the citisen, 
 T.xis point will be further noticed hereafter. Conceding, however, 
 t-.at the determination of the Governor is conclusive as to the 
 sufficiency of the affidavit, v/e have for determination the question 
 v/netner the plaintiffs are in fact fugitives from justice. 
 
 5263
 
 2>ctradition 12 
 
 Eouvier defines such a uerson to \,e "one who, having con- 
 mitt ed a crime in one .jurisdiction, goes into anotner in order 
 to evade the law and avoid TDunis^ient" (1 Bouvier's La-.? Diction-^ 
 ar'/ '551); and the Const it ut ion of the United States defines eucn 
 person to'te one "v/ho shall flee from justice." 
 
 It is difficult to .see how one can flee who stands still. 
 Tha t fhPTP rr.u^x ^^ ^n actuR l flA^-inp ji^. th - ink is ■ ?''ppr "i y ^ i^eGo^* — 
 nized_by the Cons titution of the United States. The words "wno 
 ?han~?ie^" do no"t^T.nclude a person who never was in the coiuntrv 
 from which he is said to have fled. 
 
 It i? urged, however, that the plaintiffs were constructively 
 in IJassachusetts at the time the crime is alleged to have 'oeen 
 committed, and that they have constructively fled therefrom. 
 
 In The P eople v . Adam.s, 3 Denio, 190, it v/as held that a 
 person actually a resident of Ohio co'old commit a crime in Mew 
 YorV and upon his coming voluntarily in the last narked State he 
 could there be tried and convict_ed. We are not required to either 
 approve or disa^^prove the doctrine laid down in this case, and it 
 will "be presumed the laws of Ma?sachusett s are the same as those 
 of ITev/ Yor?.c in this respect. In the cited case the defendant went 
 voluntarily into the State of ITew York, and it might v/ith much pro- 
 priety "be sfeid that, having so done, he v/as amenable to the laws 
 thereof. 
 
 The question in the case at bar is verj' different. Granting 
 that a crim.e m^ay be thus co m^iitt ed . the question before us is 
 v/hether, thejT, the Strte of lov/a is bound to surrender a citizen 
 to the State in which the crime was ccrimitt ed? This depends upon 
 the obligation in this respect imposed bylihe Constitution of the 
 United States. Before it can be said there is such an obligation, 
 two things must appear. There must be •/ First, a crime charged; 
 and, second, that the -oerscn charged il a fugitiv e from, justice; 
 that is to say, "tha.t he has fled from the ^t at e in which he is 
 charged v/ith the crime to escape punishment."/ Such miist be the 
 legal effect of his fleeing. In other .vords, he must have been in 
 the State, committed the cryime, and fled. 
 
 The Constitution of the United States does not reouire Iowa to 
 surrender, on the demand .of a sister State, as a fugitive from Jus- 
 tice, cn,e j//ho only constructively has fled from the latter. Kurd on 
 Habeas GorpuS*-fg^:?ST7, 612. 
 
 . If the decision of the Governor is final and conclusive as to 
 t. lis question, it must be sc- as to all questions touching the ex- 
 .r.-aioicn of a citizen under the constitutional r-rcvision above 
 quoted. Counsel for the aiDpellant concede there'are cases in which 
 a wriu^ci habeas corious may issue^ and the prisoner be discloarged. 
 Jftp^f r;;'.!^'^' ^?:-'-t ^^ \;- ^curts at this day cannot be seriously 
 queo.ioued. nurd on Habeas Corpus 2d Ed.j, 621; in the matter- cf 
 Manchester, 5 Cal ., 2 37; Sc X)arte Smith. 3 LicLeaA, 121. 
 
 526 3
 
 1 3 
 
 Extradition 
 
 The Governor of this State is not clothed with judicial 
 pcverl anS tTere is no provi. ion of t he Const itut ion o^^la-.s of 
 ?he united States or of this Otate whxch provides that ^is de- 
 tP^innt.ior^ isfinal and conclusive m the case o. tne extradi 
 tion of thecrTiz^rTi 
 
 In the absence of such a provision we hold that the decision 
 o^ the Governor only makes a prima facie case; .:-iat it is ccape 
 tent for the courts, in a proceeding cf fHTs cnaracter. "O in- 
 quire into the correctness cf his decision , and aiscnarge .ne 
 prisoner. ^ Affirmed. 
 
 St at e V . Day . 
 
 Supreme Court of Iowa, 1882. 58 Iowa 678, 12 N. '<V. 733. 
 
 The defendant having been convicted of burglar;/, appealed 
 on the ground that the court was without jurisdiction for tne 
 reason that he was arrested in .Visconsin and turned over to the 
 Iowa authorities without a warrant and before any complaint was 
 filed against hi m in Iowa. 
 
 Rothrock. J. » I. After the trial in the court below the 
 district attorney and the attorney for the defendant entered into 
 the following stipulation. "It is stipulated in tne above en- 
 titled cause between defendant and the district attorney of the 
 10th judicial district of^ Iowa, that defendant was arrested m 
 Wisconsin, before any complaint or irLd_ic_tment v/as made or filed 
 against him in lov/a, or any v /here else; that the arrest was made 
 without anv warrant or legal process and on susjiicion; that the 
 arrest was" made by the officers of Prairie du Chein in connection 
 with the officers of Clayton county, Iowa; that defendant objected 
 to being taken to Iowa, and protested with the officer against 
 being arrested in Wisconsin and taken therefrom to Iowa; that the 
 said officers disregarded his protests and brought him within the 
 jurisdiction of said District Court, for the purpose of having _ 
 an information filed against him aj^d a v/arrant issued thereon in 
 Clayton county, Iowa; that defendant was held in custody, under 
 said process, being a warrant issued in Clayton county, lovi^a, on 
 the same day of his arrest and after he v/as brought into Clayton 
 county, Iowa; that he was regularly indicted and dvily arraigned 
 in said court, and plead not guilty to the indictment , Cn the 
 trial the foregoing facts appeared in the testimony, and defen- 
 dant moved the court for discharge of defendant before the case 
 was submitted to the jury. The motion was overruled and defen- 
 dant excepted to the ruling. Defendant was convicted by the 
 jury and sentenced to six years in the -Denit ent iary . 
 
 5263
 
 Extradition ^* 
 
 "It is hereby stipulated to subr.it the question cf juris- 
 diction raised under the above facts." 
 
 It is contended by counsel for appellant that the motion for 
 a discharge should have been sustained. 
 
 The removal of the defendant to this State without warrant or 
 authority may have been illegal under the laws of Wisconsin. I. 
 it was. the parties guilty of .vrong are amenable to the lav/s of 
 that State. But the courts of this State will net, upon a tria^ 
 of an indictment upon a plea of net s^uilxy. inquire as to J-ihe^-'^-er 
 or not the defendant was t)ro-Derly or improperly brought within the 
 jurisdiction of the court. A party cannot clain imtiunity from an 
 offense charged upon any such grot^d. Counsel eite 3t at e v . 
 Hufford, 28 Iowa,' 391, in support of the claim made that tne de- 
 Tendant shouai have been discharged. In that esse the defendant 
 was arrested in this State as a fugitive from justice, on li^e 
 charge that he had committed a murder in the State of Illinois. 
 He was taken before a^^ustice of the peace and entered into a bond 
 for his future appearance s.nd made default, and suit v/as brought 
 upon the bond. It was held that there co'old be no recovery upon 
 the bond because it did not appear t'nat the defendant was charged 
 v/ith the crime in Illinois, by way of indictment, information, 
 nor by any accusation knov/n to the law. This statement of the 
 case is sufficient to show that it has no application to the 
 
 case at bar. 
 
 j^f firmed. 
 
 State V. Kealy . 
 
 Supreme Court of Iowa, 1895, 89 Iowa 94, 56 i-T.W. 283. 
 
 The defendant was extradited from ITev/ Yq^ tc Iowa upon an 
 indictment charging him v/ith f p"! !^ e _X! ^Pt. enp ep - Afterwards, and 
 without giving him a reasonable opportunit:/ to return to Hew 
 York, he was tried here on an indictment charging him with 
 forge^-. The defendant, having been ccnvicted on this charge, 
 after^ motion that he be discharged from restraint on this in- 
 dictment, appealed. 
 
 "Rot hro ok. J . - The defendant was indicted for the crime of 
 obtaining money under false nre t ens e s . After the crime was 
 committed, he left this state, and went to the state of New York. 
 A requisition vjsis made upon the governor cf tha.t state for the 
 extradition of the defendant, upon the ground that he had been in- 
 dicted in this state, and he was returned to this state in pursu- 
 ance of the requisition. After he was brought tc this state, and 
 
 5263
 
 Extradition 15 
 
 while he was in custody under t^iat indictment, he Y/as indicted 
 for forging a promissory note. ,Vhen he was brouf';ht into court on 
 the last indictment, he made a motion to "be discharged from re- 
 straint on the indictment for forgery, on the ground that ne v/as 
 not extradited on that charge, and that, ueing in restraint on the 
 first charge, he could not be required to plead to the second in- 
 dictment, nor could he be restrained of his liberty by reason 
 thereof, he never having had an opportunity to return to the state 
 of New York. The court overruled the motion, and required the de- 
 fendant to plead to the indictment. A plea of guilty was entered, 
 and the defendant was sentenced to imprisonment in the penit ent iai^j.' 
 for two years . 
 
 It appears from the abstract in the case that the two indict- 
 ments v/ere founded upon wholly different and distinct charges, 
 and, as we understand it, they did not involve the same transaction. 
 The record does not show what disposition was made of the indict- 
 ment of obtaining money under false pretenses. It is stated in 
 argument that the defendant was sentenced to imprisonment for 
 one year on that charge. 
 
 The question presented 'for decision is stated by counsel 
 for the appellant in the following language: "Can a party taken 
 from one country or state to another, upon proceedings of extradi- 
 tion, legally be held to answer to another and different offense 
 than that upon which he was so extradited, without being given an 
 opportunity to return to the state of his asylum?" 
 
 This case does not involve any question of international 
 extradition. The defendant »s removal from the state of Uevj York 
 to tnis state was not procured by any fraudulent pretense or 
 representation made tc him for the TDurpose of bringing him within 
 ,ne jurisdic-cion of our courts. It is provided by section 2. 
 article 4, of tne constitution of the United States, that "a person 
 chargea m any state with treason, felony or other crime, who shall 
 flee from justice and be found in another state, shall on demand 
 ^LV^^ executive authority of the state from which he fled be 
 oS^rn -.1^^ *° ^^ removed to the state having jurisdiction of the 
 thJr;!. ^!.''^!-P° ^'^^^ of this constitutional provision in 
 V^^ +u! ?• Ejctradition was not resorted to as a means of r,rocur- 
 l^S^tiir^^^"'''^l^^ *^' defendant in this state for the purpose 
 quest [oi^W^i'i^^ process in a civil action. There can be no 
 thfr^ow^T. tf / J fP""^ ^"^"^ °^ ^°"^^ county, in this state, had 
 thlrlwll tL ;?^*^? L^""::?^ indictment against the defendant, and 
 walon ?he ?1rst ?nJ?^* ^^ extradition upon that charge that there 
 hi was sentenJS ^n ihV^'^f '. '^i^ counsel states in argument that 
 indictment anlt^^ i penitentiary- for one year on the first 
 ment las to cSLence artK'^r- ^^•^^° ^^^^^^ °" *^^^^ ^^'^^"d i^'dict- 
 
 o26 3
 
 Extradition 16 
 
 tine and o-nt)ortunity had been given after his release en the first 
 charge to return to lie;; York, from v/hich asylur. he was lorcioly 
 taken on the first charge. 
 
 There is a conflict of authority upor: this question. This 
 court is committed to the doctrine t-:at, •■''^'=r^ ^ pp^"^-'- -j'^ ;^Tr.Y^P^r^ Tr 
 charged v vith f , c'^'"'^^ , the courts will not inquire into the circ um- 
 st anc' gg'"T!ncrer v/hich he haf^ "brought into t his j^ tal e, dird-TTixhin tne 
 iuFT TrfTTrt. inn of the court, stat e v . koti^, ^i 'luuvk, 4o'n It is ' 
 true that the defendants in tnat case were not brou^'ht to this 
 state under a requisition upon the executive cf another state. 
 They were arrested in the state of Missouri v/ithout legal v/arrant, 
 and after being forcibly brought to this state they v/ere rearrested 
 and turned over to the civil authorities, and indicted. It is said 
 in that case, that, "the officers ofthe law take the requisite pro- 
 cess, find the persons charged within the jurisdiction, L.r.c. this, 
 too, without force, wrong, fraud, or violence on the part of any 
 agent of ohe state, or officer thereof. And it can make nc differ- 
 ence v.'hether the illegal arrest v;as made in another state or 
 another government. The violation of the law of the other sover- 
 eignty, so far as entitled to weight, would be the same in principle 
 in the one case as the other. That our own lav/s have been violated 
 is sufficiently shown by the indictment. ?cr this the__state had 
 a right to detain the prisoners, and it is of no importance how 
 or where their capture was effected." In the case at bar the 
 Defendant v/as -oroperly indicted, and, v/hen process was issued on 
 the indictment, it is of no im-ncrtance by what authority he was 
 brought into this state. In support of this doctrine; State v. 
 Stewart. 60 Wis. 587; Ham v . St at e. 4 Tex. Apn . 645; State v. 
 ^rewster, 7 Vt . 118; Sow's Cas er~l6 Pa. St. 37; State v. tVensel. 
 77 Inct. 428; Kerr v . T eovTe rTTC 111. 627. The first two cases 
 above cited are founded on facts substantially the same as the 
 case at bar. As we have said, there is a conflict of authority 
 upon the question. The cases v/ill be found collected in 7 Am. 
 and Eng. Encyclopedia of Law, 648, We have no disposition to de- 
 ^^r^.£^°^ *^^ ^^® adopted by this court in State v. Ross, supra, 
 and the judgment of the district court -^s Afirmed — — 
 
 Edmunds v. Griffin. 
 Supreme Court of lov/a, 1916. 177 Iowa 389. 
 
 The plaintiff, having been arrested uher a warrant of the 
 governor and surrendered to an agent of the governor of Colo-ado. 
 petitioned for a writ _oXJiabeas corpus to secure his release, on 
 tne ground of the insufficiency of the in dict ment fo und against 
 mm m Colorado. He moved for a co nt Ir^uanc e "^ft he t?roc eed ^ ngs to 
 enable ram to^ecure the attendance of v/itnesses wh^'wculd Drove 
 an alibi. Tnis motion was denied and the plaintiff was not' re- 
 leas ea. He appealed.
 
 Jbctradition 1' 
 
 Deemer, J. - Plaintiff wn-._ indicted oy th^ grand jur^ of 
 Huerf^6-C5^nty. Colorado, for tne crime of nuraer. Tne indict- 
 ment was in short form, as follows: 
 
 "That the defendnet did then and there feloniously wilfully, 
 deliberately, premeditat edly, and of Cli3)nal ice afc ret hough. 
 kill and murder one Pliny ?. Lester, contrary zc the .crm Ox tne 
 statute, " etc. 
 
 The indictment was in exact conformity v;ith the statutes of 
 Colorado, See Colorado Statutes of 19CS, p. 577, Section ^956, 
 r ead i ng as f o 1 1 o v/s : 
 
 "Sec. 349. All excenticns which go merely to the form of 
 an indictment shall be made tefore trial, and no motion in arrest 
 of judgm.ent or v/rit of error shall be sustained for any_ matter not 
 affecting the real m.erits cf the offense charged in sucn indict- 
 ment; no indictment shall be quashed for v/ant of the words, 'v/ith 
 force and arms, ' or of the occupation or ^olace of residence of 
 the accused, nor by the reason of the disqualification of any grarxi 
 Juror or grand jurors; and in any indictment for murder or man- 
 slaughter it shall not be necessary to set forth the manner in 
 v/hich cr the means by which the death of the deceased v/as caused, 
 but it shall be sufficient in every indictment for murder to ciiarge 
 that the defendant did feloniously]^ v/ilfully, and of his malice _ 
 aforethought kill and murder the deceased; and it shall be suffi- 
 cient in every indictment fcr manslaughter to charge that the de- 
 fendant did feloniouslv kill and slav the deceased. jG. S-O ^26; 
 L. '79, p. 5C J 1, am.ending G. 1.$ 786, R. S. p,236, 5 ISC, 1" 
 
 At the time tho indictment was returned, plaintiff v/as 
 not in the state of Colorado, but had come to Iowa, where, short- 
 ly a:*'ter the return thereof, he was arrested, and, the governor 
 having honored a requisition frcm the governor of Colorado, he is 
 turned over to the ag»ant thereunto appoint ed, and this proceeding 
 was to secure his release from custody. -.Shen the issues were 
 settled by pleadings, plaintiff filed" a motion for continuance, in 
 order to secure the attendance of v/itnesses by v/hom he could prove 
 an alibi: that is, that, though in Colorado at the time the crime 
 is alleged to have been ccmmitted, he vias not in Huerfanc County, 
 but in Colorado City or Denver, and could not have committed the 
 offense. Objections to this were made on various grounds, and the 
 motion v/as denied. The case then v/ent to hearing, but no testimory 
 v/as introduced save to present the records, do cumeots and v/rits 
 issued by the executive heads of' the tv/c states, and the Statutes 
 of the state of Colorado, These all ap-oear to be in proper forn^ 
 and the only questions arising on this' appeal relate to the ruling 
 on the motion for a continuance, and the" sufficiency of the indict- 
 ment. Other matters are discussed, but, as they are not substan- 
 tiated by the record, we shall give them no attention. The ruling 
 on the motion to continue was largely discretionary v/ith the trial 
 court. The requirements of the statute v.-ere not fullv met, and on 
 
 5263
 
 Extradition -8 
 
 this ground alone the motion night have ceen denied. Aside from 
 this, all that plaintiff expected to show by the witnesses naned 
 by him in his notion was that, while he was in the state of 
 Colorado at the tine the offense is aaid to have been connitted, 
 he was not in the county where the murder is alleged to have been 
 comraitted, and, therefore, could not have committed it - in other 
 words, an alibi. Such a shov/ing would not entitle him to a re- 
 lease. He ^vas a fugitive here, according to well-established 
 rules, and the question of his p:uilt or innocence must oe deter- 
 mined by the courts of the demanding state. This matter has so^ 
 recently been decided by us that we need do no more than cite_tne 
 authorities in support of the rule. Leonard v. Zw eifej^. 171 lov/a 
 522; Taylor v. Wise, 172 Iowa 1; Harris v. Map.ee. x 50 Iowa l'±4. 
 
 II. Again, it is aaid that the indictment against the peti- 
 tioner lacks the essential elements necessary to constitute a 
 charge of murder. It does follow the Colorado statute, although 
 it would doubtless be insufficient under our law. iiut the indict- 
 ment is to be tested by the law of the place where found. Recog- 
 nizing this principle, the petitioner, nevertheless, contends that 
 the Colorado statute from which v/e have quoted is unconstitutional, 
 in that it de-orives rsetitioner of due process of law, of the right 
 to know what the offense is that is charged against him and ail 
 the particulars thereof. 
 
 It is also claimed that such a statute is in contravention 
 of the Bill of Rights of the Federal Constitution and of the 
 Constitutions of both states, and is unreasonable and arbitrary 
 and should be so pronounced by this court. This statute has re- 
 ference to- procedure cnl;?-, and to the form of an indictment for 
 murder. It is v/ithin the power of each state to regulate its 
 ov/n procedure, and a statute for this purpose must clearly offend 
 against some constitutional provision before it will be declared 
 void by the courts. Counsel ha-'^e not pointed out any constitu- 
 tional provision, either state or national, which covers the 
 point; but they do insist upon some generalities which they seem 
 to think cover the case. We find nothing upon which to base the 
 argijsment . On the contrarj^ the Colorado court has sustained the 
 statute against such an attack. Jordan v . people (Colo.), 56 
 Pac, 218, 220, See, al so, Ryan v . Peopl e ( Colo . j. 114 Pac ., 306: 
 Andrews v . People '^Colo.), 79 Pac . 10 31 ; Cremar v. people (cole), 
 70 Pac. 415. The reasoning of the Colorado court is sound, and 
 although not conclusive upon us, it is so persuasive that nothing 
 need be added. It is there said: 
 
 "The statute, taking its origin in England, has been adopted 
 in a number of our states; and, so far as we are advised, wherever 
 the question has been raised, the statute has been held constitu- 
 tional, and indictments in the form provided held sufficient to 
 charge murder of the first degree. 2 £ish. Or. Proc. (2d Ed.) 
 (/ () 52 3-5 39, and cases cited. The act is not in conflict with the 
 section of the till of rights providing that »in criminal pros- 
 ecutions the accused shall have the right . . .to demand the 
 
 5263
 
 Extradition 19 
 
 nature and cause of the accusation.' Const, Art. 2, () 16. An 
 info iinat ion must shov/ the nature and cause of the accusation, 
 i.e., it must set out the crime charged. It need net set cut the 
 mode or manner of its perpetration, or the instrument or agency- 
 employed to accomplish the result ." Jordan v. people, supra, 
 
 He reach the conclusion that the trial court properly denied 
 the writ, and the order must be and it is affirmed, and petitione: 
 is ordered delivered to the defendant Miller as agent for the 
 state of Colorado. 
 
 Evans. C.J.. Weaver and Preston, JJ., concur. 
 
 5263
 
 SGcticn 3 20 
 
 Venue , 
 
 If an alleged offense is found to be one t'^at is triable 
 in this s^tate. it is then necessary to determine v/.-iich oi ourcourts 
 
 - trv it. AS a rule the case must he tried in the county m 
 wMchThe crine was connitt ed .^^This county is called the ve.iue.^ 
 
 State V. m'-oracek." 
 Su-oreme Court of lov/a, 1908. 14C Iowa ?65, 
 
 In a trial for statutory desertion one problem involved 
 v/a'' whether the venue was correctly l^id. The indictment was 
 found in the county in .vhichthe vdfe and child resided, although 
 the defendant v/as then living elsejiJiere. In decidins that the 
 venue was rightly is id, Ladd, C. J., speaking; for the court said: 
 
 II. fes the venue right ly laid ? "The local jurisdiction of 
 the district court is of offShses committed within the ciounty 
 within which it is helj, end of such other cases as are or may 
 be provided by law." Section 51^4, Code. This case is not v/itnin 
 any of the excenticns alluded to, unless it be Section 5157 of the 
 Code, which provides that; ^Utien a public offense is committed 
 partly in one county and part":} y in another, or when the acts or 
 effects constituting or requisite. to the consummation of the 
 of-f'ense occur in two or more' counties, jurisdiction is in either 
 county except as otherwise provided by iajj^^ The statute under 
 consideration, save the portion in relation zo abandonment, is 
 essentially negative. The penalty is denounced, not on the commiss 
 ion of any affirmative act, but on the om.ission of the plainest 
 diity. Necessarily, then, the venue de-oends on where the omission 
 to perform the duty oc cur red. The accused had settled with his 
 family in Story County/, ileither he nor they had done anything to 
 change that residence.* This being so, it was his duty as husband 
 and father to provide for them and^furnish them with food, clothing 
 and shelter at their place of residence in Story County. >- He ov/ed 
 no such dnty elsewhere, and, because of the situation of his wife 
 and children, must have omit ted the duty i n Stor-,' County, or not 
 at all. Somewhat akin in prmciple"' is I'he'line of aases deciding 
 that the avenue in embezzlement cases may be laid in the county in 
 w^Tich it was the duty of the accused tc account .g^ St at e v . Ilengen, 
 106 Iowa, 711; S t site v. Maxwell. 113 iowa, 369.1 'ThT'-D res ence of 
 tne offender wiThin the courity v/here a crime is cominitted is not 
 always essential, ] but soj ag poj-tion of the a ct or ommi ssion tc act 
 
 must have taken /f f Pr^t -PrpTt^ l- .Bishop, l.'ew Crim. Pr6C. b6 ' . ~ . 
 
 1 iiisnop, iJew Crim. Law, IIC, 111; People - . Sri f fen. 2 Barb. 
 IH. Y.) 427. vVhile defendant, if so inclined, mTgHT hc.ve sent the 
 means of support from the place where he was stayin.^ in Hamilton 
 County to have been effective these must m.ve been furnished in 
 
 5263
 
 Venue " 21 
 
 Story County. So that, in any event, the omission of the duty was 
 at least in part in thq cminty where the indictment was returned. 
 The offense is somewhat novel, cut upon f'jll consideration we are 
 of the opinion that the venue is in r.he r.nuntv v;here the duty of 
 providing for the wife and children should be discharged. S^s 
 supporting this conclusion, see Johns on v. Peo-ple 66 111. App. 
 10 3; Bennefield v. State, 80 Ga . 107 (4 S. E. 869} . 
 
 State v, Gibson 
 Supreme Court of Iowa, 1905. 132 Iowa 53, 106 IJ. J7. 270. 
 
 yrom a judgment of conviction of the crime of false pre- 
 tenses, the defendant appealed. 
 
 peemer, J . - The indictment charges in substance that de- 
 fendant^ with another, by false statements, pretenses, and re- 
 presentations, obtained from the Des iJToines Mutual Hail Insurance 
 Association, of Des Moines, Iowa, the sun of $24.80 in lawful money 
 of the United States. The testimiany shows that defendant v/as act- 
 ing as agent for the insurance association in soliciting and for- 
 warding applications for insuranue; tliat he forwarded pretended 
 applications by mail from Ch'icl^saw county, Icwa, to the insur- 
 ance association at Des Moines, Pursuant to defendant's request, 
 the insurance association mailed a check for ^24.50 to hin, 
 drawn upon a bank in Des Moines, Iowa, as his commission for se- 
 curing applications for insurance. This check was received by 
 defendant in Chickasav/ county, indorsed by him, and caahed by a 
 bank at New Hampton in said cou nty . Through the agency of this 
 latter bank the check finally reached Des Moines, v.fas there hon- 
 ored by the bank upon which it was drawn, and the amount thereof 
 charged against the account of the insuranne association. 
 
 It is contended in argument that the defendant did not re- 
 ceive the money in Des Moines, or polk county, but in Chickasaw 
 county, and that the district court of Folk county had no juris- 
 diction of. the offense. Under the evidence there can be no doubt 
 that the defendant made the false pretenses with which he is 
 charged in Polk county, loji^t; for the applications were there re- 
 ceived and acted upon by t?Te insur anae as sociation, placing 
 the same in the mail to be forvi^ardeci to the insurance company 
 was not^ so far as the criminal aspect of the case is concerned, 
 a false pretense in the county where the applications were prer)ai'ed 
 or received by the defendant. State v. House, 55 lo-^, 466. 
 
 But it is stoutly insisted that the money 'jfa.s tjrccured in 
 Chickasaw county and not in Fol'k, where Des Moines is situated. 
 
 526 3
 
 Venue 
 
 22 
 
 a -Dubl 
 
 hr.ve a statute (Code, section 51 57 J (I'M ch provides that when 
 ci uublic offense is ccrrunitted Tpsrt lv in\ne co unty and partly 
 in'a-othe^-. or v/henthe acts or effects cQjis titut ing jjLC-reguisit e 
 to the offense occur in two cn-Tn(Tr5-J5TJnt ie^n urisdict ion thereoi 
 is in either county. This wo-old seem to settle the question now 
 being considered. Com, v. Goldstein, 3 Pa. Co. Ct . R. 121; 
 Norris v. State. 25 Chio St. 217 U8 J^ra. Rep. 291 j; State v. 
 Li chliter. 95 Mo . 402 (3 S. \i. 720); Com, v. Taylor, lOo Uass . 
 r72; Re g, v. Leach. 7 Cox, G.C. 100; peoijle v. Diraick, 107 i^.Y. 
 o3 (14 N. E. 17Sj; Reg, v. Jones . 162 Cox, C. G. 198. Aside from 
 statute there raay be some doubt as to the venue of the offense 
 under such a state of facts as is here disclosed. See Roberts v. 
 PeoT3le, 9 Colo. 458,13 Pac . 620; State v. Palmer. 40' Kan. Sup. 
 474^ (20 Pac. 270); Burton v. U. S .. 25 Sup. Ct . 243 (49 L. Ed. 482), 
 State V. Schaeffer. ' 6^ Mo. 271 1 1 S. V/. 293); Co nnor v. State. 
 29 -^la. 455; (10 South. 391, X Am. St. Rep. 1261; Granam v. 
 people, 181 111. 477 (55 IJ. E. 179, 47 L- R. A. 75L): U. S. v. 
 PlvmTDto n. 4 Cranch, C. C. 309, (Fed, Cas . !Io . 15,058); Bates v. 
 State, 1^4 V/is.. 612 (103 N. -V. 251). Com, v. Wood. 142 Mass. 
 45'3 (8 !T. E. 432. ) '.Vithout deciding this question, which we re- 
 gard largely a moot one, it is enough to say tliat our statute was 
 "borrowed from ITev/ York, and under the decisions in that State 
 construing this statute the district court of Folk county had 
 jurisdiction. See people v. Dimiclc^ suiora » • 
 
 Affirmed. 
 
 State V . Hengen. 
 
 Supreme Court of Iowa, 1893. 106 lov/a 711, 77 KT. ;/. 453. 
 
 From a judgment of conviction of the crime of embesslenent, 
 the defendant appealed. 
 
 T -, 
 
 -add, J. The evidence tended to ehow that Pattee, as 
 manager of the installment house of W . A. Edv/ards of Des iioines, 
 in polk county, and the defendant, there entered into an oral 
 contract by the terms of which the latter agreed^to travel and 
 sell goods for Edwards in certain counties of Iowa other than 
 Polk, and to account or report to Edwai'ds at Des Moines by mail 
 e^rery Saturday night, and ^nclose therewith the leases taken for 
 goods sold or cash received" therefor. . These leases ran from Ed- 
 wards to the T3urchaser, permitted payment in installments, und were 
 conditioned that title should net pass until the price was f^olly 
 paid. Some of the- goods were delivered by Pattee to the defendant 
 at Des Moines; others - and most cf them - v/ere shipped to him 
 in Dallas, Boone, and Carroll counties, and from these loc£J.ities 
 he made reports at different times. The general agent demanded 
 an accounting in Carroll, and also in Dallas county. This the 
 
 526 3
 
 Venue 2 3 
 
 defendant failed to r.alce, and insisted on making settlement v.dth 
 Pattee at Des Koines. V/hen he reached Des J/.oines, he was unable 
 to account for the property recsj^ed. The evidence tenda to show 
 that he appropriated goods of Awards, delivered or sent to him, 
 valued at two hundred and thirteen dollars. If it be conceded 
 that the goods were delivered "by Edwards to the defendant as his 
 agent in Polk county, or were sent from there to hirn elsewhere, 
 and upon the agreement that'^he was to_^count for them to Edwards, 
 in Polk county, and he failed to do so -::'iien this was demanded, 
 and it appears that he fraudulently converted the sane tc his own 
 use "by selling and appropriating the^roceeds in some other county 
 had the district court of Poll: coun-^y^ jurisdiction to try him for 
 such offense? In other words, v;as the venue properly laid in Polk 
 county^ Our statute provides that "when a public offense is 
 committed partly in one county and partly in another, or v;hen the 
 acts or effects constituting or requisite to the consummation of 
 the offense occur in two or more counties, jurisdiction is in 
 either county, except as otherwise provided cy law." Code, sec- 
 tion 5 157. The venue can always be laid in the county where the 
 conversion act uall y took place, but it is often as difficult to 
 determlv^'6 wh&e as it is when that happened. This is especially 
 true of an agent xvho travels as salesman from, town to town through 
 several counties. The authorities agree that, if the transaction 
 constituting the offense extends through different counties, that 
 in wiiich the conversion took p].ace has not the exclusive juris- 
 diction. 1 Bishop Criminal Procedure, 61; 7 Enc. PI. 5:Prac. 412. 
 But, unless some essential eleiaent constituting the crime of 
 embezzlaaent occurred in Polk county, the venue could not properly 
 be laid therein. The establishm.ent of the contract creating the 
 fiduciary relation, and the duty to account for the property re- 
 ceived, is quite as necessary :^or donviction as proof of the 
 conversion. In Reg;. *v. Llurdock , Dennison & P . , Crown Gas. 298, 
 m.oney was received by the accused in Derbj-shire, though both 
 parties lived at Nottingham. Upon inquiry concerning the m.oney at 
 the latter place, Llurdock admitted having spent it, and the venue 
 was held to be there; Talfourd, J., remarking: "Ky opinion is, the 
 offense was complied when the prisoner refu3ed to account to his 
 master at iiottingham. " In ReR-. v. Rogers . 3 Q,. 3. 26, the sending 
 of a letter by the defaulting employe, in effect denying the re- 
 ceipt of the money from another county, where he had collected it, 
 to his employers, and its receipt by them in that in which it was 
 his duty to account, and where both resided, gave jurisdiction in 
 the latter county. In these cases the judges assigned different 
 reasons for their conclusion, and, in the last, Huddleton, H, 
 dissented. The demand and refusal must be regarded, however, only 
 as evidence of conversion, and not essential to constitute the 
 crime. State v. Brooks, 85 Iowa, 366; Hollin 3.sworth v. 3tate , 
 111. Ind. 289 (12 K. E. Rep. 490); btate v. Ili ms, 26 Llinn. 
 191 (2 IT. W. Rep. 492). If this were not so, the offender might 
 prevent the completion of the offense by flight. And it follows 
 that, if the conversion is made comtilete by the appro'oriation of 
 
 5263
 
 Venue 24 
 
 the property in one county, the mere demand and refusal v^ould 
 not add to it in any way, and thereby aid in conferring jurisdic- 
 tion in the place of such demand. If there -vere no evidence of 
 such a conversion else'.vhere, it migjit be inferred to have been 
 at the place -.vhere the demand is made, in event the duty to there 
 account existed. Rep:, v. Murdock, supra ; Campbell v. State . 
 35 Ohio St. 70. In the last ca,.:e the defendant tras shown to have 
 had the r.ioney of his principles in the county -vhere it was his 
 duty to account, and the fact that he expended it in another^ 
 county V73.S held to be no defense. In State v. Bailey , 50 Ohio, 
 656 (36 'I, E. Rep. 233) the de:^endant v/as employed by Hood 
 Bros. Co., in Toledo, Lucas county, to sell goods for cash or on 
 the installment plan in Fremont, Sandusky county, but to report 
 in person or oy letter to the firm at Toledo at the end of each 
 v/eek. Part of the goods Tvere delivered to him in Toledo, and 
 others sent to him at Fremont, After working some time, he caused 
 a letter to be ^srritten and mailed to them, saying his sales were 
 small; he v/as discouraged, but '.vould a^ait their further orders. 
 He had sold the goods on har^d, and spent part of the proceeds 
 there, and afterwards the remainder in Buffalo, H. Y. , to which 
 place he immediately absconded. The court, in holding the venue 
 to be in Lucas county, said, tiirough Bradbury, C,J.: "Tt is the de- 
 fendant's duty to account, together 'vith his neglect cr refusal to 
 do so, that constitutes the fraudulent breach of duty. A demand 
 at a place when and where he owes no duty is, of itself, not 
 enough. The defendant's obligation was to account to his employers 
 at Toledo, in Lucas county. This obligation pressed upon him v/ith 
 equal force whether he was within or without the county. Kis re- 
 fusal, neglect, or omission to discharge this duty may be as clear- 
 ly m.anifested by silence and the circumstances of his absence, or 
 by letter, as by spoken v/ords, unless there is some magic in 
 personal presence. A'hat the presence of the offender witi.in the 
 countj'' when a crime is committed is net always necessary to give 
 jurisdiction is a settled principle^ ITorris v. State , 25 Ohio St. 
 217. The question is by no means >tee from difficulty, but we 
 think the weight of authority, as v/ell as of reason, authorizes us 
 to hold that the making of the contract in Lucas county, the ex- 
 press duty it imposed upon the defendant to account weekly to his 
 employer there, either in person or by letter, together with the 
 fact that he did report to therii falsely by letter, which they re- 
 ceived, constituted such integ ral and essential parts of the tran- 
 saction aE entitle venue to be" laid Tn Lucas county." The case 
 at bar is like that from which we have quoted, and we are inclined 
 to follow it. The defendant lives in Polk county, where^he con- 
 tract was made, and frori whence he received "TTTffproperty. He 
 agreed to account to his em.pl oyer at Des Moines. His failure or 
 neglect or refusal to do so elsewhere would not amount to conver- 
 sior.jfor he owed no such duty to his employer. That ho fully 
 realized this was showh by his insistency on settling with Pattee 
 at Des Moinec^^ "Whether there or elsewhere, his obligation to 
 **^ 52 63
 
 Venue 2B 
 
 account for the property at that place continued, and his failure 
 to do so Tvhen then recues-ced at that place T:as a clear or each of 
 duty he ov/ed to his principal. The existence of the contract, 
 and the breach of the particular duty it imposed, Trere essential 
 elements of the transaction constituting the embezzlement. See 
 7 Enc, Fl. & Prac. 412; State v. Small . 26 Kan. 209; State v. 
 Whiteman . 9 T7ash. 402 (37 Pac.'Rep. 659); McCiain Criminal La'.7, 
 section 650, We do not overlook the case of People v. Murphy , 
 51 Gal. 376, announcing a contrary rule, but deem that adopted 
 as having better support in authority and reason. 
 The judgment is Affirmed. 
 
 52 63
 
 26 
 
 Section 4 
 
 Courts. 
 
 Having determined the county in which the accused nay be 
 tried, the final inquiry in the matter of jurisdiction is to 
 determine which one of xhe tribunals sitting in that county 
 is the proper one in which to institute this prosecution. (Por 
 a discussion of the superior court see Page v. Millerton (1901) 
 114 Iowa 378, 86 U. "W. 44C. The Municipal court is considered 
 in Model Laundry Co. v. larnett (1917) 180 Iowa 55). 
 
 Orton V- State 
 
 Supreme Court of lo^j^a, 1853. 4 Greene 140. 
 
 The opinion states the facts. 
 
 Opinion by Greene. J. Orton v/as indicted for an assault 
 upon Terrel, and on trial found guilty. It is ncv contended that 
 several errors were committed beloT7 in the progress of the 
 trial. 
 
 2. It is claimed that the court erred in overruling defen- 
 dant's motion in arrest of judgment. In support of this motion, 
 it is urged, that the court altered the verdict of the jury. 
 
 It appears by the bill of exceptions that the jur^'' returned 
 the follor/ing verdict: "^e, the jury, find the defendant guilty 
 of the second charge in the indictment." The court, on receiving 
 the verdict, s&,id, "Gentlemen, let us un^'erstand this verdict; 
 you find on the simple assault?" The jury assented. Thereupon 
 the court added to the verdict, in the presence of the jury, the 
 folloT;inB words, "the sinple assault." 
 
 As the second count in the indictment charges a "simple 
 assault" only, the verdict of the jury justifies zhe assiiinption 
 that the" found the defendant guilty on the second count in the 
 indictment. The judgment in the case is in harmony with this 
 vie:r of the verdict. The words added to the verdict in the pres- 
 ence of the jury were in accordance with their explanation of the 
 verdict. The addition o+' those words was justifiable. They did 
 not chance; th^y simply explained zhe intention and meaning of 
 the verdict. ^!7here a jury return tc the court an informal or am- 
 biguous verdict, it is the duty of the court to have it corrected 
 in form, or have the amhigisiity explained by the jury, at any tine 
 before they are discharged/ Wright r. Phillips . 2 G. Greene, 191. 
 
 3. But it is objected that a s-imple assault is not indict- 
 able, as the offense is cognizable before ^ justice of the peace. 
 
 Code, 5 3322 Although justices of the t>eace have jurisdiction 
 
 52.63
 
 Courts 27 
 
 over such offenses, it does not, therefore, follo'.7 that the dis- 
 trict court is divested of such jurisdiction. In such a case the 
 j ur j-sdic tl -fi-'^ -•■" P ^ pv=u=--^T- r en t . 
 
 The Code provides that the district court shall exercise 
 general jurisdiction, both civil and c riminal, "when not other- 
 wise provided by law," 1575. Tha t juris dj^ctijo n can bej baken 
 away only by express w ords. Y'ri^hfv. iViar"sh, 2 C-. (Greene, 94. 
 
 Under the constitution, the district court has jurisdiction 
 in all civil and criminal matters arising in their respective 
 districts. 3^_See art. 5, (J 4. The general and concurrent extent 
 of triat jurisdiction has been repeatedly before this court. Cr.ap.. 
 man v.Morg:an . 2 G. Gieene, 374; Nelson v. Gray, ib . , 397; Mutton v . 
 Drebilbis , ib. , 595. 
 
 The indictment contains three counts, in each of which an 
 indictable assault is charged, under which a simple assault 
 might be included^ A defendant may be found guilty of any offense, 
 the comirii&sion of which is necessarily included in that with which 
 he is charged in the indictment. Code, (} 3039. A simple assault 
 is necesoarily included in the charge of an assault., with intent 
 to commit a bodily injury, and therefore the defendant might have 
 been found guilty under either coun'C. 
 
 Judgment affirmed. 
 
 State V. Eurdick. 
 
 Supreme Court of Iowa, 1859. 9 Iowa, 402. 
 
 A der.urrer to an indictment for assault and battery having 
 been sustained, the state appeal ed^>\ 
 
 Wrig:ht, C. J . - The grounds of demurrer relied upon are, 
 that the offense charged is not indictable, and that the law under 
 which the indictment was found, is repealed. 
 
 The constitution, which took effect S ep t em. b er 5 , 1B 5 7 . pro- 
 vides that all offenses less tiaan felony, in wh i c h tn e pun i s hm ent 
 does not exceed a fine of one hundred dollars, or imprisonment 
 for thirty days, shall be tried summarily before a justice of the 
 peace, or. information under oath', without indictment. (Section 11, 
 -Art. 1.) By the Code, section 2597, the offense here charged, 
 was punished by imprisonment in the county jail, not exceeding 
 six m.onths, or by fine net exceeding two hundred dollars, or both 
 
 52 63
 
 Courts 
 
 28 
 
 suc>- fino and ir.priscnir.ent , at the discretion of the court. The 
 punishment clause in this section rrc.s changed by section 1, 
 chaoter 5C, La^7B 1858, go as to read, "by i:;iprisonrnpnt m the 
 county jail not more than thirty days, or by fine net exceeding 
 one hundred dollars." This last act took effect July 4, 16o8. 
 Held , that there being no saving clause in the act of -1358, as to 
 offenses committed prior, or prosecution then pending, the District 
 Court had no povrer to hear and determine the cause, but that the 
 same should be heard "surrjaarily before a justice of the peace on 
 information under oath." State v. Roll et. 6 lovia. 535; ?alters 
 
 V. State, 5 Iov:a 507. 
 
 Judgm^Tit affirmed. 
 
 State V. 7ord 
 
 Supreme Court of Iowa, 1913. 161 Iowa 323. 
 
 The facte are stated in the opinion. 
 
 Ladd, J. - The accusation against D. D. Ford and Johji 
 Pumroy it- the "violation of Code, section 2419, in conveying such 
 liquor to one not a permit holder"; the liquor previously having 
 been described as intoxicating. The charge is not specific, but 
 the sufficiency of th_e^ information is not questioned. The parti- 
 cular offense -'as in carrying, as employees of a drayman, three 
 cases of beer shipped by K. nvew Company from F.oci: Island, 111., 
 via the Chicago, Milwauicee & St. Paul Railway Company, to three 
 persons at Ottumwa, lo^ra; the defendants having procured the said 
 casee from tlie rai'^road company'' at -its depot by virtue cf the 
 order of the consignees. The defendants were acquitted in the 
 police court and the properti* ordered returned. On appeal by the 
 state, the district court affirmed the decision, holding in effect 
 that under the so-called T7ilscn Act the liquors had not so arrived 
 in I07:a as to render these subject to its la^. See, as bearing 
 thereon, Louisville Ry. Co. v. 7. 7/. Cook 2re^n,-; Co.. 22 3 U. S. 
 70 (32 Sup. Ct. 139, 56 L. 2d. 355 j ; State v. ?7i.^n5.11 , 150 Iowa, 
 650; State v . Intoy.icat inp- Liauors , 106 Ivle. 153 (76 Atl. 265, 
 29 L. H. A. (IT. 3.) 745,20 knn. Cas. 668); 3uli. etc. , C. '^ \ Ry.CP . 
 V. State . 28 Okl. 754 (116 Pac. 176, 35 L. R. A. [l^.Z.] AcoJ] 
 State V. 18 Casks of 5eer . 24 Okl. 786 (104 Pac. 1093, 25 :.. R..'^. 
 (iwS. ) 492; ; State v. Kirmeyer . 38 Xan. 539 (123 Pac. 1114',. 
 
 The jurisdiction of the district court to entertain th9 
 appeal by the state was cixai^enged and the question is again 
 raised in this court. unless the cause was appealable fromi th^ 
 police to the district court, this court could adquire no juris- 
 diction, and of course, if the district court v/as ';7ichout 
 
 5263
 
 Courts 29 
 
 authority to entertain the appeal, the power of review might not 
 be conferred by consent or wai-er, though the state has so argued, 
 and the mere fact that the defendants did not appeal from the 
 order overruling the motion to dismiss in the district court v;ould 
 not -orevent them from raising the questio n he re. It is elementary 
 that' jurisdiction may be challenged at any stage of the proceea- 
 
 ings. . _. . 
 
 ?he appeal is Dismiss ea. 
 
 State V. Kinney. 
 
 Supreme Court of Iowa, 1875. 41 lo'.va 424. 
 
 "Defendant was arrested upon an information charging hia 
 with the offense of assault and battery, and brought before a 
 justice other than the one issvii n^p; the wa rrant. Upon an affi- 
 davit for a change of venue the cauae was sent bad-: to the first 
 justice, Tiho, being unable to try the cause, sent it to a third 
 justice; all of these justices were of the county in which the 
 offense was committed. The defendant pleaded not guilty, and 
 made no objection to the jurisdiction of the last mentioned jus- 
 tice; upon a trial before that officer he was convicted and fined. 
 Upon a,ppeal to the district court the case was dismissed on the 
 ground that the justice trying it had no jurisdiction thereof. 
 Prom thi.^ order the state appeals." 
 
 Beck, J. - The order of the district court dismissing the 
 case was erroneous. 
 
 The jurisdiction of justices of the peace is co-extensive 
 with the county. Code, (• 4660. The justice trying the cause 
 acquired jurisdiction therein by defendant having been brouglit 
 into his court and submitting, without objection, to be tried 
 there. 
 
 If there was any error or irregularity in tahinj; defendant 
 before the justice rendering the judgmient, '.vhich v;e do not deter- 
 mine, it was waived by the failure to raise objection founded 
 thereon at the proper time. Objections upon such grounds cannot 
 be first made upon appeal in the District Court. 
 
 Reversed, 
 
 52 63
 
 CHAPTER II ^0 
 
 STATUTE OF LIMITATIONS 
 
 With regard to limitations as to time, iz is one of the 
 peculiarities of English law that no general law of prescription 
 in criminal cases exists among us. The maxim of our law has 
 always been 'Nullum tempus occjrit regi', and as a criminal trial 
 is regarded as an action by tho King, it fellows that it may be ^t^m^ 
 brought at any time. This principle has been carried to great ^ J^ 
 
 lengths in many well-known cases. In^the middle of the last c en- ^-.^ 
 tury Aram was convicted and executed for the m.urder of Clarke, ^ . 
 
 fourteen years after his crime. Home was executed for the murder •• 
 of his bastard child (by his 07/n_ sister) thirty-five years after 
 his crime. In 1802 Governor V/alT was executed for a murder 
 committed in 1782. Not long ago a man named Sheward was executed 
 at Norv/TcT:- f or the murder of his wife more than twenty y ears 
 before; and I raay add as a curiousity that, at the Derby ';7inter 
 AssiEes in 1863, I held a brief tijjr the Crown in a case in which 
 a man was charged with having stolen a leaf from a parish regis- 
 ter in the year 1803. In this instance the grand jury threw out 
 the bill." (2 StepTien's History of the Criminal Law of England,!) 
 
 Eut although this was true at common law, statutory limita- 
 tions of the time in which prosecutions may be instituted, are 
 quite general. It should be borne in mind that fjuc J:! sto-tutes a re 
 a gts of ^^r ace and hence are not governed by the same rules of con- 
 struction as are applied to ordinary statutes which change the 
 comjiion law rules of crimes and punishments. 
 
 Brightman v. Hetzel. 
 
 Supreme Court of Iowa, 1918. 183 Iowa 385. 
 
 The facts are omitted. 
 
 Gaynor , J . - 
 
 In City of Waterloo v. Union Llill Co. . 72 lov/a 437, the doc- 
 trine was recognized that the statute of limitations will not run 
 to defeat the exercise of governmental powers. It rests upon the 
 doctrine that individuals raay be held to a time limit in the en- 
 forcement of their rights against adverse claimants. This is be- 
 cause they have sufficient interest to make them vigilant. But 
 in public rights, each individual .feels but slight interest, and 
 would rather tolerate even ^ manifest encroachment than to seek a 
 dispute to set it right. The people do not act m a body. The 
 agents of the government, experience shows, do not m.anifest the 
 same degree of diligence in detecting and protecting public rights 
 that individuals evince in the r)rotection of their cvn rights. Some 
 
 52 63
 
 ♦ •
 
 statute of Limitations 31 
 
 courts hold that the statute of limitations cannot "oe invoked -;o 
 deprive the people of their right in putlic easements, /a puolic 
 easement belongs to the public, and all individuals are charged 
 with knowledge of this fact. Arij encroacjrjment upon the public 
 right is a wrong at the very p. eginnin^. an d continues a vrrong , 
 and..!!^ ^ form no basis for an. estoppel against the :vuDlic~ S^e 
 Tar^ld"son v.' Tovm of Lime Springs . ^^ imJu 18/', Lil-.ca^:o7 R. I. 
 & P. R. Jo. V. City of Council Bluffs . 105 lov/a 425; Dickinson 
 County V. Fouse, 112 Icvra 21; Biglow v. Ritte r, 131 Iowa 213; 
 Quinn v. Laage7 ~155 leva 426. In this last case, it is said: 
 
 "Though the authorities are in conflict on the question 
 (to wit, the statute of limitations), this court is committed to 
 the doctrine that, in f^ stabi i sliing and maintaining a hig^hway. a__ 
 municip ality e: : eT"ci aes jjovernmental functions, and for this reason 
 the jr ^odLe of lirr.itat ion s do es no'c run against it "^ith r espect 
 to encroa^nmen"D therein." ~~~ "" 
 
 State r. Disbrow. 
 
 Supreme Court of Icra, 1906. 130 Iowa 19, 106 11. T[. 263. 
 
 Fror.; a aonviction of the crime of larceny by embezzlement, 
 the defendant appealed. 
 
 Weav er J . - 
 
 III. The indictment appears to have been framed ^vith the 
 purpose of charging an offense under Code, section 4842, which 
 enumerates several classes of employes, agents, and bailees 
 whose fraudulent conversion of money or prop ei'ty intrusted to 
 their keeping is made punishable as em.bazzler.ent. This section 
 does not expressly mention gu ardians as being subject to the 
 penalties there provided, and ^/h ether they are fairly included 
 witliin the general terms of the statute is a question on which 
 the authorities are not in unison. Ll yers v. State , 4 Ohio Cir. Ci 
 R. 570; State v. Henry . 69 Tenn. 720; State v. Lleye r. 25 TTkly. 
 Law. .fcul. (Ohio) 251; Com, v. Buttcricl: . 100 Llass. 1 (97 Am. Dec. 
 65); State v. Gillis . 75 Kiss. "331 (2T"south. 25); State v. 
 7/hit chouse. 95 Lie. 179, (49 Art. 869). The case as presented 
 does not require us to construe the statute in this respect, and 
 is one of too much ir.portance to be de-^initely decided without 
 the assistance of argume^it by counsel upon Loth sides 
 
 w-kJ » 
 
 The same section of the statute also provides that, where 
 
 the fraudulent conversion or embezzlement of r.xoney is accomplished 
 
 by a series of wrongful acts done in course o^ the same 
 
 5253
 
 statute of Lirit^'.tions 32 
 
 er.ployment, they are to be considered as if all ivere dons at the 
 same time. ■t.Thether this clause is applicable to a charge of the 
 nature of the one here involved, and, if so, its effect upon the 
 
 __ probably 
 
 we stop to consider it. The trial court adopted the theory that 
 each act of the accused in fraudulently converting the trust fund 
 or any part of it to his own use constituted an independent 
 offense, and that as to each the statute of limitations began to 
 run at the date of the act. This is also the theory of the 
 appellant, and must therefore be regarded as the law of the case 
 for the purposes of this appeal. 
 
 It ^.vill be recalled from the preliminary statement of facts 
 that prior to the presentation of the indictment herein another 
 indictment had been returned against appellant o n th e sane charge 
 and set aside as defective and the matter resubmitted to the grand 
 jury, Tne date of said prior indictment was September T 4 "! ^(^4 . 
 Now, as the evidence on the trial showed quite conclusively that 
 appellant converted the trust ftind to his own use in several items 
 or amounts and at various times extending over a period of about 
 six years fror.: 18 9.6 to 19X 2. and as the statutory limit for 
 criminal actions of this nature is but three years, it v/as a 
 m.atter of importance to the appellant that the jury should be 
 correctly instructed as to the period within which he could be held 
 criminally liable for his acts. The instructions given directed 
 the jury that such liability included all fraudulent conversions 
 by the accused v/ithin three years prior to the return of the first 
 indictment September 14 ,_ ]„?Q4. This ruling is assigned as error, 
 it being the contention of the appellant that he can only be held 
 liable for such embezzl em.ents, if any, as were comimitted by him 
 within three years prior to th£.jiate of the indictm.ent on which he 
 was tried, January 19. 190 5. \Te are of the opinion that this con- 
 tention must be sustained. Limitation of the time beyond vhich an 
 action will not be maintained is purely a matter of statutory 
 enactm.ent, and precedents cited from, other jurisdictions are of 
 little assistance, unless it also appears that the statutes there 
 considered are of like form and effect with our own. Our statute 
 (Code, section 5165) provides that an indictm.ent in this clas€ of 
 cases must "be found within three years after the com;:iission of 
 the offense and not afterwards." In somie of our sister States the 
 corresponding provision is th,at "profeecution must "be begun" within 
 the stated limit. The beginning of a prosecution and a finding of 
 an indictm.ent are not equival ent expr essions. A prosecution is 
 begun when an inform.ation is f il ed b ef or e a magistrate and a 
 warrant issued for the defendant's imm.ediate arrest. An indictm.ent 
 is found '-flier, it is presented by the grand jury in due form in 
 open court and filed with the clerk. This distinction has been 
 widely, though perhaps not universally, reccgni-ed. C om, v. 
 Woodward, l Chest. Co. Ret). (Pa.) 102; Eou^hn v. State. 44 
 
 52 63
 
 statute of Liinitaticns 33 
 
 Neb. 889 (62 N. V7. 1C94); Com, v. ^unn (?a. ) 1 Leg. Op. 114; 
 United States v. Slacuin , ?ed. Gas. ilo. 16,311; £x parte Lacey 
 fOkl.) (T? Pac. 1095): Coci. v. Hass . 57 Pa. 443. 
 
 The language of the statute it too clear for construction, 
 and, vrithout reference to the time 'vhen the proceedings were 
 begun, the indictment must be found within three years from the 
 comraission of the offense, and not afterv/ard. 
 
 It is said, hot/ever, on the part of the State, that even 
 if this he true it is settled la\T that "the tine during Trhich 
 an indictment t;hich has been quashed or set aside was pending 
 is not, in case a new indictment is fojand, computed as a part of 
 the oeriod of limitation, provided the same offense and the same 
 offender are charged in both indictments." We find this general 
 proposition stated in some of the text-books and cyclopedias; 
 but reference to the cases relied upon, sc far as we have been 
 able to examine them, reveals in each instance that the decision 
 turns upon a local statute expressly or impliedly providing that 
 upon the setting aside of an indictment or the entry of a nol . 
 pros, the right of the State to present a new indictment within 
 a limited time shall not be o rfc.ludic ed . Swall ey v. People, 116 
 111. 247 (4 xT. E. Rep. 379); S tate v. Dunham , 9 Ala. 76; Stafford 
 V. State . 59 Aric. 415 (27 S. V/. Rep. 495;; State v. Child , 44 
 Kan. 420 (24 Pac . Rep. 952); State v. Hailey , 51 N. C. 42. 
 
 It seems to us a reasonable and just proposition that, in 
 the absence of any statu-fre saving such rigt.t to the State, the 
 running of the statute of limitations ought not to be interrupted 
 or suspended by the return and pendency of an indictment upon 
 which no valid conviction or judgment can be founded. Such an 
 indictment is no indic'^m^ent. It is a nullity, and while it may 
 serve as authority for the trial court to continue the defendant 
 in custody and cause a resubm.ission of the caae to the grand jury, 
 such order is in effect the m.ere direction that the original in- 
 quiry shall be resumied as if the defective indictment had never 
 been voted or r eturneS* into court. It is no more than a restor- 
 ation of the case to the status it occupi ed *at the time it was 
 originally submitted. The grand jur^- takes it up anew, and may 
 present or ignore the bill, without any reference whatever to 
 the fact that one indictment has been presented and set aside. 
 Cases are not wanting wliich tend zo sustain this viev/. United 
 States V. Ballard. Fed. Gas. I'o. 14,507; State v. Curtis, 30 La. 
 ^nn. 1166; Comi. v. Keger . 62 Ky. 240; Ucwoort News «Se M. V. R.R. 
 Co . V . C ona:ionw eal th . 14 Ky. Law. Rep. 197. But, -.vithout reference 
 to the precedents fr^; other States, our statute admits of no 
 
 other conclusion than the^one we have indicated 
 
 Reversed. 
 
 52 63
 
 statute of Liiritaticns 34 
 
 State V. Scper. 
 Suprer:,e Cou:-.-t cf l0T7a, 1902. 118 Io'.7a 1. 91 'J.I. 774. 
 
 McGl 5 ,1 :1 J . - 
 
 II. Ano'clisr ground cf denurrer 'ivas that the indie tr.ent en 
 its face sho?/ed that it was nc-; found -nthin the statutory period 
 of limitation, wMch, as to the cri:;ie of conspiracy, i s t:_:r e3 
 years. Code, secti'on 5165. But Code section 5167, proyices that 
 "nT^period during wiiioh the party cmrged was not publicly resi- 
 dent^Tyithin the state is a part of the liiuitation, " and it is 
 alleged in the indictment that "since the conr.'ission oi the afore- 
 said cri2.ie the defendants have bee;i nonresidents and lived 
 
 beyond the liinits of the state of lo'wa more thnji one year." As 
 the indictnent was found less than four years after the date cf ^t-:^ 
 conspiracy as charged in the indictinent, this allegation is suffi- 
 cient to take the case out. of the statute, and bring it j-it^iin the 
 exception of Code, secti oru~51S7 . unless it in to be said uiiat 
 vhile one is a nonresident of -ti^e state and living beyond its 
 li:7iits he may nevertV. elesb be publicly resident ^/ithin the state. 
 17e think it evident that by an;" reasonable interpretation the 
 language used in the indictment inust be held to plainly negative 
 public residence 7?ithin the state, and therefor that this objec- 
 tion '.Tas not rvell taken 
 
 Aff imnd. 
 
 State ". Hussey. 
 SupreKiO Court of leva. 1858. 7 Iov;a 40? . 
 Wright, Co.- 
 
 • • » • 
 
 The objection that the prosecution ^ae barred by the statute 
 of lirit"tiont, could not be n:a.d e 'oy .dep.u rrer. If, after the 
 offence 'vas com::itted, there 'ir',s any period during '.vhich the party 
 charged, r7B.3 not usually i-^na. probably a resident "ivithin the State, 
 such period is not to be taken as a part cf the limitation. Cods, 
 section .^314. Such ncn -Ji^eside.ic e need not , hot-ever . be stated 
 in the indictr.ai^t . If t af:~~d ef er.'d?cnt r ol i es upon the bar of the 
 statute, he should plead the Bvxiie, to r/hich the State laiglit reply 
 the ncn-r esidence, and thus raise the isnue. 
 
 For this reason, then.witi-out stating others, vre think the 
 demurrer 'Tas properly overrul ed 
 
 (On other grounds the judgment r/as) 
 
 Reversed . 
 
 52 63
 
 /
 
 statute of Limitations 
 State V. 7;halen. 
 Supreme Court of lorra, 1S95. 98 Icv/a 562, 6B N. ^. 554. 
 
 Ro'binson, 
 
 V. The indictraent vjb.z found on the seventeenth day of January, 
 1895. The defendant stated, as a v/itness, that he had se;r^ai in- 
 tercourse T.'ith the prosecutrix in the year l^£i ; and in some of 
 her ansv;ers she stated that the time of the seduction Tvae Sep- 
 tember 29, 189^ although she afterv'ards corrected the statement, 
 and said the year rra.s 1893. During the time the state "^as intro- 
 ducing ito evidence, the defendant offered an instrument, of ?/hich 
 the following is a copy: "Comes no-.7 the above named defendant, and 
 specially pleads that this prosecution is barred by the statute 
 of limitations, and asks the court tc charge the jury that if they 
 have reasonable doubt v;hether the 'Offense charged in the indict- 
 ment V73.B coiiTmitte d -/wi thin eighteen months prior to the seventeenth 
 day cf January, t'895~, if committed at all, they must acquit .defen- 
 dant. " The court r^efused tc allo^ the paper to be considered as 
 a plea, bvit, in the charge which it gave, instructed the jury that, 
 if the offense charged Tras comiiiitted eighteen months or more be- 
 fore the finding of the indictment, the defendant could not be 
 convicted. The appellant contends that the court erred in not 
 permitting him to plead the bar of tr.e statute, and relies upon 
 the cases of State v. Huseey , 7 Iov;a, 409, and State v. Groor.e , 
 10 lovra, 512. The first cf these cases held that " defendant 
 ^ho relies upon the bar cf the statute should plead it; and the 
 other, that it could not be raised oy demurrer, by instruction, 
 or motion for a nej' trial, b ut should be specially -plead ed. 
 Neither of* those cases "ras decided under existing statu^Ts, but 
 under the Code of 1351. Section 2957, cf that Code, provided that: 
 "There are three icinds o-' pleas to an indictment, *7hich r^ay be 
 pleaded by the defendant: ?irst , guilty; second , not guilty; 
 third, a forr.er judgm.ent cf conviction or acquittal of the offense 
 
 charged in the indictm.ent "In section -1-714, of the 
 
 Revision, of 186G, and in section 4359, of the Code of 1873, ti.e 
 language is, "There are but thJ?ee pleas to an indictment" (nar.ing 
 the samie as those given in the Code cf 1851). The sentence, "There 
 are three kinds of pleas," is more comprehensive than, "There are 
 but three pleas," and the change from the former to the latter, 
 indicates a i_egislative intent to exclude all pleas not specified. 
 This conclusion is strengthened som.eTrhat by section 4715, of the 
 Revision, no"; section 4360, of ^j^ Cede, r.-hich prescribes a form 
 for each cf the three plsas alloTsred. It is further strengthened 
 by the enactment irfTPT? Revision of section 4655, continued in 
 the Code of 1873, as section 43G1, r-hich is as follo-.rs: "The pre- 
 cise tim.e at X7hich the offen se r/as commdtted, need not be stated 
 in the indictr.ent, but it is 'sufficient if it allege that the 
 offense was comr.iitted at any time prior to the finding thereof, 
 
 52 65
 
 statute of Limitations ?6 
 
 except vjhen. the time is a material ingredient in the offense." 
 It is not necessary, under this provision, to prove v.'hen an 
 offense was coiTH^iitted, if time is not a ma f erial ingredient of it. 
 State V. ITocre . 78 lor.-a, 495 (43 N._W. Hep. 273), and ca&es there- 
 in cited; State v. D e itrick . 51 l07;a, 471, (l IT. '.?. Hep. 732). 
 If the e"ic".ence shQ-vs tha- the offense was oomr.itted ••■ithin such 
 a time lorior to the f indin g, the indictment tiiat the action is 
 not barred, it is sufifc-xent, and it is "che-'vell settled ':.,nd au- 
 thorized practice to instruct the jury 'vithin r/hat time ti.e crime 
 charged must be proven to have been commiitted, in order to v/arrant 
 a conviction. The plea^ tendered in this case, tc the effect that 
 the prosecution 'vas ^Sarred by the statute of limitations, v/as 
 neither necessary to a presentation of that defense, nor author- 
 ized. The court rifrhtly charged the jtiry in regard tc the time 
 within which the alleged offense must have been Gorm.:itted to 
 authorise a verdict of guilty, and that "as sufficient. 
 
 Affirned. 
 
 St at e ^ . Kut chi ns o n . 
 
 Supreme Ccurt of Iov;a, 183 3, 5C Iowa 4'?S, 15 IT. '.7. 298. 
 
 Frcr. a conviction of embe.^zl eraent, the defendant appealed. 
 
 Rothrock, J. - The defendant wr.s Treasurer of Webster county 
 for ten years, corn-nenc ing in Jf.nuary, 18.S8, and endir^ in Ja:ra£.rjr, 
 1S73. In April, 137E, the indictment in this case -.vas returned 
 against him, in which he was charged v/ith embezzling about $4&, OQC 
 of the public money v/hich came intc his ris.nds as 3uch treas'orer. 
 
 The State introduced in evidence the settlement sheet v/hich 
 was made at the oommencement of the defendent's last term of 
 office, in January, 1876, v/ith his cert if icat e thereon that it v/as 
 a true statement of cash then in hi? hands as trea!:rurer. The 
 account or settlement sheet embraced the transactions cf the 
 office for the six months next preceding the settlement, end upon 
 its face it apr>eai'ed to be correct, and the defendant '.vas thereby 
 shov/n not to be in arrears. T'^ie State then follov/ed up this_ show- 
 ing b-.- an exhitit of the subse.:iuent semi-annual settlement sheets, 
 and then from the books of the office for the last six months of 
 the last term, ending in January, 1373. Uricn this basis it 
 appeared that ct some time during the last term of office the de- 
 fendant became short in hi.s ca^h some $46, SOC . 
 
 We do not u.nd erst and that the defendant contended upon the 
 
 tri?.l thrt he v/as not short in his cash, and lar?elv in arrears, 
 
 v;hen he v/ent out o-!" office in Januarv, 1G78. Put he sovvrht tc 
 
 5263
 
 statute of Limit at icns 
 
 37 
 
 show that this shortage occured during his prior terrns more than 
 three years tefore the indictment was fc una, ana tnat therefore 
 the ^rollcution was barred ty the statute of lirnitat.ons .0 rnake^ 
 this" proof, the defendant offered eviaence to t-.e ef.ec. tnc-.o .t 
 the .Sttlement made in January. 1875, and at /.nee P^'evioasiy .nd 
 subsequently made, but a small amount of casn ^f^^, P^^^^-f S^IX ^^tu- 
 settlLent. and that the cash balance whicr. should nave ^een actu- 
 ally in his hands in money, were largely made up of c^nK cert 1.1 
 cates of deposit and other vcucxiers. xie oiierea to sncw .a^t cer. 
 f?cates of deposit and other evidences of debt had oeen made use o. 
 bv him in his settlement, more than three years pnor to tne bind- 
 ing of the indictment. He further offered to prove tnatn|hadno . 
 funds i n the banks which issued the cert i f icat_e^ _ xn other ./o.d.. 
 he offered to show and r^ove that he maae nis settlement witn/ne 
 board of surjervisors fcy the use of worthless and spurious cer.1^1- 
 cates/cf deposit, instead of cash, and that whatever money was con- 
 verted to his ovm use was so converted more than three years oefore 
 the indictment v/as presented. This evidence was objected to oy the 
 State, and the objection was susteined. This ra].ing, as v/e infer 
 from the objections made to the evidence, was based upcn the idea 
 that the defendant was criminally bound by the settlem.ent sheets, 
 and by his cert if icr.t es, that he had the cash actually on hand at 
 the time the se^.-eral settlements were m.ade. 
 
 In Boone County v. Jones , 54 lov/a, 659, it was held that a 
 county treasurer, and the sureties on his bend, were bound by a 
 settlement and accounting made according to lav/, and where, at 
 such settlement, for aughtr that appeared, the cpsh v/hich should 
 have been on hand was proauced by' the treasurer, such settlement 
 ccijld not be i;.ipcached by ehowing that the defalcation complained 
 of previously exist e_d,. In other words, it was held that, where 
 a treasurer produces the funds v/hich should be in his hands, at 
 a settlement, the settlem.ent is conclusive, and the treaourer and 
 his sureties cannot be permitted to prove that the treasurer de- 
 ceived the board of supervisors in^ such settlement, by producing 
 money not belonging to the office^^or to the treasurer. That was 
 a civil action to recover upon the bond of the treasurer for an 
 alleged defalcation. In V/ebstor County v. Hutchjnsoii. 9 II, tf. 
 Rep., 901, and 12 N. \7. Rep., 5 34, which y/as a civil action to 
 recover on the defendant's bond for the same alleged defalcation 
 for which the defendant was indicted in this case, it appeared that 
 the settlement was made with the treasurer without producing the 
 money y/hich should have been on hand, but by producing certificates 
 cf deposits from* banks, and other evidences of indebtedness. It 
 v/as held that this const it ut ed_no_se^tl ement, because the law re- 
 quired the cash to be produced. It was further held that, as the 
 board of superr'-isors v/ere not deceived 'c^'■ the -oroduction of the 
 money, it was allowable for the sureties' avon the defendant's bond 
 to show that the defalcation existed in fact prior to the settle- 
 ment in question. It was also held, in that case, that the defen- 
 dant was concluded, by the settlement, unon the very obvious ground 
 that he could not be allov/ed to take advsntage of his cv.-n v/rcng 
 and fraud, to the injui-y of the public, even though the beared of 
 supervisors knew that the settlement was not made in compliance 
 with the law. 
 
 5253
 
 statute cf Limtations 28 
 
 We are now required tc detorrdne -.vhether or not the atove 
 rules, which are applicable tc civil liability upon a treasurer's 
 "bond, should be held tc obtain in a criminal prosecution for en- 
 bezzlement. We are clearly of the opinion that they should not. 
 If the claim of the defendant be true, he v/as guilty of enbes^le- 
 ment a? early as 1372. He offered to prove that, frorr. that time 
 forward, he made "IuF~settl ements, not v.ith money, rbvtt largely with 
 certificates of deposit, and v/ith other promises to pay. This^ was 
 v/holly unauthorized by law./ Even if the defendant had actually^ 
 deposited money with the' bsinks, and the certificates represented 
 the deposits, such a disposition of the funds in his hands was un- 
 authorized, Lowry v. Polk County, 51 Iowa, 5C . Lut ;vhen the defen- 
 dant offered to 'lorove that he had no deposits in the ban.ks, ne, ^ 
 in effect, offered to show that he had converted the money whic/i 
 had been in his hands to his ovm use. At least, this wo'old have 
 been the logical inference, in the absence of proof that he had lost 
 it, or that it had been stolen, or the like. The fact that at eacn 
 settlement he failed to produce the money, v/as a sufficient failure 
 to account for the funds in his hands, to constitute the crime of 
 embezzlement, in t he abse nce of exculjiatx! r;.- proof. 
 
 We think the defendant should have been allov/ed to shov;, if he 
 could, that no defalcation t_&ojk_place within three years naict be- 
 fore the finding of the indictment. We know of no ruD. e that estops 
 a defendant in a criminal prosecution from proving the actual fact 
 in dispute, notwithstanding any admission or confession he may have 
 mrde to the contrar2r. GonclusJjL£_p resumpt ions and esto-ppels have 
 no place in the criminal lav; in establishing the body of the crim.e 
 charged. The statement and certificate shov/ing that the cash v/as 
 actually on hand and produced at the settlem.ent in 1876, amounted 
 to no more than an impl ied confe^gion that the defalcation took 
 place after that time," and to deny to the defendant the right to 
 dispute the confession thus made io, in our opinion, fundamentally 
 wro ns . 
 
 ;r (if a demand 
 
 was necessary) for the pa2/ment of the alleged shortage, v;as a suffi- 
 cient demand, in view of the authority given to him by the board of 
 supervisors. 
 
 For the error first above discussed the judgment of the 
 District Court will be ^ 
 
 Reversed. 
 
 5263
 
 CHAFTiS III 39 
 
 FOP.TvJER JEOPARDY 
 
 It is stated by Blackstone (4 Corj-. 355) to te a "universal 
 rxtxira of the coramon lav/ of England, that no men is to be broupht 
 Into jeopardy of his life more tl^is.n once for the same offence." 
 This ii^ not entirely covered by the provision of the Constitution 
 of Iowa (Article 1, section 12") that" "no person shall, after ac- 
 quittal, be tried again for the sene offense"; but by statute 
 (Code of '97, section 5539) it is provided that "a conviction or 
 acquittal by a judgment upon a verdict ehall bar another prosecu- 
 tion for the same offense, notv;ithstanaing a defect in form or 
 substance in the indictment on which the conviction cr acquittal 
 took place." It is added by the tv/o following sections that ^*:men 
 e. defendant has been convicted or acquitted upon an indictment for 
 an offense consisting of different degrees, the conviction or ac- 
 quittal shall be a bar to another indictment for the offense charg- 
 ed in the former or for any lower degree of that offense, or for an 
 offense necessarily included therein"; end "except v.-here otherwise 
 provided, the judgment for a defendant on a demurrer, cr on an ob- 
 jection to its form or substance taken on the trial, or for variance 
 between the indictment and the proof, shall not bar another prose- 
 cution for the same offense, if" a resubmission has been ordered." 
 The provision of another section (5333; that one of the three pleas 
 to an indictment is that "of a former judgment of conviction or ac- 
 quittal of the offense charged," merely states in sim-cle English 
 what were anciently kno'ATi as the pleas of autrefois acquit and 
 autrefois convict. 
 
 But "a defect in the form or substance in the indictment" 
 IS not to be confused v/ith the problem of jurisdiction, and if 
 nhe former conviction was by a tribunal without jurisdiction"" 
 ''?ooi^ fr^^^-^°^-'^^r conviction will not be good. State v. Jamison 
 a39S} 104 .owa 343, 73 N. ^!J. 831. Moreover the FFo'TTsion as' to — 
 e de.ecx appxxes only if there has been a judgment upon a verdict 
 .Hereunder. If, because of the defect, the indictment is quashed 
 before trial ( Reddan y. St at^ (1S53), 4 C-. Greene 137) cr set 
 aside during the trial, the defendant mar be r)rcsecuted utdoh a pro- 
 ^fo^^^^^^^^^^-'^* subsequently found against hi£i. State v.' Smith 
 (1893), 88 lo'^ 178, 55 :T. W. 198. But -here a defendant is -oiaced 
 upon trial on an indictment which is not defective, "it is not 
 v.ithin the scope of authority of either the attorney. for the ?xate, 
 or of tne court, to take the case from the jur-.-, of their own arbi- 
 trary will, ana v/itnout a peremptoi^j.- and controlling cause, and 
 again Jioid him to trial on the same charge, although it be newly 
 presented; and such a proceeding amounts to an acQuittal. and mav 
 be pleaded as such." State v. Callendine (1359), S* Iowa 288. This 
 iJlJ^Vn "'^^"' °: c^^^se, that when the trial is once begun it can 
 under no circumstances be taken from the jur'-. h'o" e-^am^T e. the 
 aischarge of a juri' that is unable to ag-ee u-ov-"aVp"-»^d^ct "i = 'a 
 r'^*^^^^^.J°;^2'^ discretion, and presents no impediment to a second 
 .rxai." o tate v. T/au.-nan ^ie7C), 29 lov/a '^Zo 
 
 5253
 
 Former Jeopardy •*w 
 
 ■ The rule is that after ai acquittal cr ccnv^ction the accused 
 shall not be again tried for the sane offense -Miot tb«t the same 
 act shall never subject a man to no re thrn one rrial^ Hence it is 
 significant that "the same act may constitute an ofy^nse against 
 both the State and the mva-icipal corporation, and may be punished 
 under both v/itho-jit ? violation of any ccnBt itut ional principle." 
 To.vn of Eloor.ifield v. Trimble (1830), 54 Iowa 399, 6 lU.'i, 585, 
 37 Am. Ret). 212. In like manner the same act may constitute an 
 offense against the United StD.tes v/hile also being a crime under 
 the laws of lov/a, so that the trial, conviction and punishment of 
 the defendant under the federal statutes for breaking and entering 
 a -Dostcffice v/ith intent to commit larceny is nc bar to a subse- 
 quent prosecution bv the state for bur^larj- under an indictment 
 which charges the same state of facts. 3tate v . Moo re (1?C9;, 143 
 Icwa 240 . 
 
 A'here the defendant, on an-neal, secures a reversal of a iudr- 
 r.ent of conviction becsuse of* error in the proceedings in the court 
 below, he nay be tried again. St at e v . K.:o us e (1871/, 33 lo ./a 
 365. It is said that "jeopardy Ti"not ccnsidered as having attacnei 
 if the defendant is erroneously convicted and obtains a reversal 
 of the judgmient." Bat if the defendant was convicted of an offense 
 which is included v/ithin a greater offense v/ith which he v/as 
 charged in the indictment, the conviction cf the leaser amounts to 
 an acquittal of the greater, so that "r defendant v/ho has been tried 
 on an indictment charging murder in the first degree and convicted 
 
 Of manslaughter orJ-y, cannot be a^-ain tried for the graver offense'j 
 Gtate V. felker . ' (19C7), 133 Iowa 489. 
 
 Pormer jeopardjr applies only when there ha? been e real prose- 
 cution for crime. If a wrongdoer, not having been accused, hastens 
 before a magistrate, confesses to having committed a certain 
 offense and pays the fine imposed, the st'.-'te i^ not b?rred from a 
 svbsequent prosecution. Such vol untar-- confei?sicn and ra-vTient cf 
 fine is not a criminal prosecution (Stcte v. Bartlett (191'?), 
 Icwa 457). 
 
 St3te V. Redman. 
 Supreme Court of Icwa, 1364, 17 Icwa 32?, 
 
 Ahat was intende:: to be a verdict cf guiltv was rendered 
 against the defendant in a former trial of the same offense, but 
 was set aside on "account cf informality", over the defendant's 
 objection. These facts: were lolerded bv'the defendant in bar, but 
 a demur-er tc thi? lolex. was sustained l- the court. The defend-\::t 
 arpealed . 
 
 5233 
 
 i 

 
 ^.
 
 Former Jeopardy ^^ 
 
 Dillon, J. - 
 
 In general, it may te said that jeopardy teg ins when a trial 
 jury, upon a sufficient indictment, in a- court of competent juris- 
 diction,' has teen impaneled and sworn to try the cause. Eisr.. 
 on Cr. Law 1)659; 2 Lead, Cr. Cas ., 558. But the jeopardy is not 
 considered as attaching in such- cases, although the jury has teen 
 sworn, if during the trial the presiding judge tecomes so ill as 
 to te unatle to proceed^ Nugent v. The State. 4 stew. & Fort., 
 72); or if a iuror •s'TTlness prevents him from sitting further 
 on the trials ( iling v. Scaltut. 2 Leach, 62C ; United States t. 
 Haskell. 4 Wdsh., 4C2; Rev., j 4804, 4820) ; or if tne prisoner's 
 sudden illness incapacitates him from attending or managing his 
 defense ^ King v. Stevenson , 2 Leach, 541 ) ; or if the jur^^ after 
 full deliberation, are unable to agree^(Rev., 4821, 4322); or 
 if the defendant is erroneously convict; ed, and ottains a re^'er- 
 sal of the judgment . In all such cases he may te put upon his 
 trial again, and cannot claim a discharge cr acquittal tecause a 
 jury has teen once tefore impaneled and sv/orn to try the cause. 
 And we understand the settled doctrine to te, that where the ver- 
 dict is a null ity ( or so defect ive that no judgment can te ren- 
 dered upon it J, the defendant may again te put upon his trial, cer- 
 tainly where the verdict was intended to be one of convict ion,_ 
 for in such case it is rather a mistrial than a legal putting in 
 jeopardy. 1 p.ish. Cr. Law, j) 6731 
 
 Thus it has even been held, that if the court refuses the 
 constitutional right of the State to a jury trial, and itself 
 tries the defendant at his instance, and acquits him, this_ is 
 no bar to another trial at the instance of the State, although 
 the State Constitution provides that no person shall be ^wice 
 put in jeopardy for the same offense. "The reason is, '• says 
 B lackford. J., who was the organ of the court, "because the de- 
 f endant, in such a case v/as not legitime modo acquietat us . " State 
 V . Mead. 4 Blackf., X9. We need not go near this quest ionatXe 
 £::t ent t; o sustain the action of the court telov/ in the case at bar. 
 
 So, where it is held that an assault and battery is merged 
 in the felonj-, and a prisoner, indicted for murder, is found guilty 
 by the jury of an assault and tatter;/, the verdict is a nullity, 
 the defendant is not in jeopardy, the proceeding is a mistrial, and 
 the judgment may te arrested and the defendant again te put upon 
 his trial on the same indictment. Wright v. The State. 5 Ind,, 527, 
 If the verdict is insufficient in not properly responding to the 
 whole indictment, and the defendant appeals, the judgment 'v.nil te re- 
 versed and the cause remanded for a nev/ trial, Marshall r. Common- 
 'i^ -^th, 5 Gratt ., 66 3; The State v. Mo ran. 7 Iowa; 255; .Vil s'cn" 
 "li-?2:? 31?.t5i_ ~<^ Ohio, 25; Ray v. T he St"ate. supra ; Webber v. THe 
 '-^'^^te, TTC I '0 . , 4 ; T ii e _.3t_a t e v. SufTcn. 4 Gil 1 Tr~?9¥ . — OrT if t ::e 
 verdict is defective and "uncertain in not responding to the whole 
 issue, the trial court may itself set it aside and trv the rrlscner 
 again on the same indictment. Co mmo n wea 1 1 h v . Kat t o n." 3 Gratt., 62;^ 
 
 B265
 
 •«'"
 
 Ponaer Jeopardy ^2 
 
 where the prisoner objected to the verdict £.3 imperfect, snd the 
 CO an set it aside and av/arded a venire de novo . %^-en tne trial 
 v;as again crought on, he moved "tc be discharged, on the ground 
 that having- been tried on the indictment, and tne court naving 
 arrested the judgment on the verdict found, because net sufficient 
 tc warrant judgment, he was not liable to be again triea .or tne 
 -seme offense;" but it was adjudged that he v;as thus liaole. In 
 Lav/rence and Donovan v. The people, ! Scam., 414, which is m all 
 resTDects in i-cint, the verdict of guilty was defective under tne 
 statute, in not finding the age of the defendant. The court be- 
 lo-.v, en its ov/n motion, set aside the verdict and ordered a 
 venire de no vo . per Smith, Justice; "The only question is on the 
 ■oower of tiie Circuit Court to set aside a defective verdict on 
 which no judgment could be rendered, and to award a venire de novo . 
 The ri^ht to exercise this power cannot be questioned. It nas 
 teen exercised in numerous criminal cases, and is undoubted." To the 
 same effect, without quoting, see peo-pl e v . Clcutt, 2 Johns. Cas ., 
 XI, the third Dcint decided. Id., 311, per Kent, J.; ^.er,. v. 
 ?:eit e. 1 Ld. Raym-,138, ^.nd £rd Holt's judgment, Rep ., ^ ITL ; S . C. 
 Ccmberback's ?.., 4C6; Commcnwealth v Percg-'-Jl, 4 Leigh (Va,;; 686; 
 The St^te v. Duncan. 2 HfcCcrd, 129, v-here the Court av/arded a ne\/ 
 trial on a defective special verdict; 1 Chitty Cr. Law, 541 ; 1 Bish. 
 Cr. Lav/, () 673. The State v. Call end ine, B Iowa, 285, dees not con- 
 flict with this viev/. Tne cnly ccubt which has been raised, is 
 whether the verdict could be set aside, a venire de novo av/arded in 
 a capital case. Rex . v . Hug g ins. 2 Ld . Raym., 15S5; and see Rex. 
 V. Burridge. 3 P, fes ., 4 39, 496 . Frcir. these cases, and from a 
 general examination of the authorities, we feel safe in laying down 
 this general rule; that where the ver d ict, especially if intended 
 to be a verdict of guilty, is so defectiv e and uncerta in that t h'e~ 
 court does not knov/ for v/hat offense t o pass judg^eatt^^ it nay be 
 set aside by tne court, even against the defendc- nt' s objection, and 
 the -proceeding is no bar to another trial . ATnis is good sense. T-"ie 
 defendant, in the case before us, nas never been acquitted. The^ 
 jur^' did not intend to acquit him. They expressljr found him guilty 
 If the court had pronounced judgment against him, and he had appeal- 
 ed the appellate court, under the authorities r.bcve referred to, 
 it v/ould not have discharged him, but remanded him for o nev/ trial. 
 It has never been adjudged that, in such a case, he cculd success- 
 fully plead once in jeopardy. The course taken belov/ amounts to 
 the same thing; and is, ar: v/e have shov/n, v/eil warranted by the 
 authorities. We are not unmindful of the rights of persons accused 
 of crim.e, but dc not see hov/ this ruling can erjev be used to oppress 
 cr unjustly injure them. It accords, licreover, v/ith the letter E.nd 
 spirit of cur Code of Criminal Procedure. This ha3_scu,jht to pre- 
 vent persons convicted cf crime, from escaping deservea punish- 
 ment on refined subtleties and Llj-ck letter precedent s, where nc 
 substantial interest or right has ^jeen prejudiced. T-*is coimendable 
 reform ought not to find an obstacle in the illiberality or the 
 prejudices of the courts. Tc order, as v/e are esked to dc, upon the 
 facts disclosed in the record, the absolute discharge of the 
 
 526 3
 
 Fomer Jeopardy ^3 
 
 d'^fend^^nt would stril<e anv fair mind, untutored in the meaningless 
 technicalities and hair-splitting dist ir.ct icns, formerly too T>reYe- 
 lent in the criminal lav/, as no less ridiculous and absurd than 
 subversive of the ends of putlic justice. 
 
 Judgment affirmed . 
 
 State V . Spayde . 
 
 Supreme Court of Iowa (1899), IIC Iowa 726, 8C N.W. 1C5S. 
 
 Deemer. J . - Defendant was first indicted by the grand jur:,'- 
 of Humboldt county. A trial was commenced, a jury impanel ed^and 
 sworn, the evidence of the state adduced, and the defendant had 
 testified, in his o.vn behalf, that he nad affixed the signature^ 
 to the note which it is claimed was forged in j/ebster county. There- 
 UTDon the court trying the case ordered the Jury discharged, and 
 held the defendant to bail to answer to a warrant from .'/ebster 
 county. This action of the court v/as objected to by the defendant, 
 who insisted that, as there was evidence tending to shov/ that the 
 crime was committed in Humboldt county, he was entitled to a ver-^ 
 diet of the jury thereoji,^ The objection was overruled, and from tne 
 ruling the defendant ar>r>eale(J to this court. This appeal^ has not, 
 however, teen presented" as yet, and with that we have nothing^ to do, 
 exept in so far as it may affect the further proceedings.. There- 
 after the grand jury of \7eb3ter county returned an indictment 
 against defendant, charpiing him with the same forgerv covered by 
 the indictment in Humboldt county. The trial from v.-hich this 
 appeal was taken was held in Webster county upon this second in- 
 dictment. To that indictm.ent the defendant pleaded not guilty 
 and a former acquittal in the district court of Humboldt county. 
 The jury returned c verdict of guilty, and by s special interroga- 
 tcT^/- found that the blanks in the net e v/hich it is claimed v;as 
 forged were filled out by defendant in_Webster county. 
 
 Several matters are presented on appeal, but, as we view 
 the case, it is not necessary to consider all of them. The first 
 point argued is thr-t defendant vas placed in jeopardy in Kiambollt 
 county, and that the dischar;Te of the ^u.vy operated as an ac^.uittrl 
 cf the offense; There is no doubt that this position is correct, 
 if the district court of that county had jurisdiction cf the 
 offense. If it did not hc.ve jurisdiction, then the dischar^~e of 
 the jury, and the oi-der holding the defendant to answer to Wiiat - 
 ever indictment mi.iht be presented by the grand jury of webster 
 county, v/as authorised by sections 5389 and 5o9i of the Code, whicii 
 provide, in substance, that, if the offense was comjnitted within 
 
 5265
 
 .■Worker jeeps rdy ^^ 
 
 the exclusive jurisdiction of another county of the state, the 
 court rrav disch?rge ^ he duty, and direct the defendant to be cod- 
 mitted for such t i:ne as shall ce re3-scn£.ble to s-vait a v/arrant from 
 the proper county, or, if the offense ce bailable, he nay be ad- 
 mitted to bail, etc. The pivotal quest ions, then, are: [1 / Did the 
 district court of Humboldt county have .jurisdiction cf the offense? 
 (2) Was the offense within the exclusive jurisdiction of the dis- 
 trict court of V/ebster county? u- 
 
 At the trial ir. Humboldt county the state adduced e^;-idence 
 tc show that the offense v/as committed in that county, and the 
 tri?-l court was evidently satisfied when the state rested its case 
 that it had jurisdiction. Defendant then went on the stand testi- 
 fied that he' did not sign the name in ?J-imboidt county. Thereupon, 
 on motion of the countj'- attornej', and against the objections of 
 defendant, the court, made the order to v/hich we have referred. If 
 the evidence as to venue is undisputed, end that evidence sho-./s, 
 that the court does not iiava jurisdict ion, then it is clearly the 
 duty of the court tc dischxc.rse the defendant, and it may make the 
 order authorized ''oir the sections of the statute to which we have 
 referred. Lut if the evidence is in dispute, or if the state has 
 adduced evidence tending to shew venue, then the iuesticn is for 
 the jury, and the defendant is entitled tc their veriicx . That 
 rule is peculiarly applicable to the facte disclosed by the re- 
 "cc'd before us. Here , as v/e have said, there v/as evidence on the 
 part of the stete pending to shov; ju risdiction ^nthe Hiujruboldt 
 district court, and the only evidence to the contrar;' on which the 
 court assumed to act vras the care statement of defendr". I: that he 
 -jid not sign the name "Franklin Rcv/e" in Humboldt ccunty. That 
 statement may have been absolutely true, and j'-et the defendant 
 may have been guilty of fcrgine; the note in Httmbcldt ccunty. The 
 e-'idence sho;vs that the note which it is claimed v/as forged was 
 p-i-tly printed and partly in v/riting. It had no legal efficacy 
 until tne blanks were filled, and the rromise given a-orr-rent legal 
 effect. Had the defendant signed the name to the print r;d blank in 
 :Vebster county, and afterwards filled ur the blanks in Humboldt 
 ccunty, there can be no doubt, v/e think,' th-a.t he would have been 
 guilty of forgery, and that the venue would have been rrc-^arl" 
 laid in Humboldt ccunty, either because the crime was the-r-e com- 
 mitted, or because som.e cf the acts or effects requisite -^c the 
 consummation cf the offense v;ere committed in that county, under 
 section 5157 of the Code. In everv criminal case jurisdiction 
 nust be shov;n, and, where there is a dispute in the e--:de-.cp as to 
 -he venue, the jury raust detei^nine t het ' disput e, the sar.e as it 
 does any other i ssue of fact . Had defendant testified, when on 
 the v/itness stand, that all the acts neoessar- to r.iake out the 
 offense were cor.r.uttea in another county, it mav be (:. -ocint how- 
 ever, tnat we dc not decid ei that he could not there.'i'ter be heard 
 to say that tne court was in error In acce-ctir^ his evidence a:id 
 discharging the jur:/. Zut that is not the^case. Here he testified 
 
 526 3
 
 Former Jeopardy 46 
 
 simply that he did not sign the name in Humtoidt county, and he in- 
 sisted that, as there was evidence tending to shcv/^. he Jurisdiction 
 of the court, he was entitled to the verdict of the jury on that 
 issue. ;ve think his contention is correct, and that the court of 
 Humboldt county should have submitted the case to the jur:,-. 
 
 Under the record, as it is presented to us, the district 
 court of Humboldt county had no authority to discharge the jury, 
 and its act in so doing amounted to an acou ittal of the defendant. 
 State V. CUlendine, 8 Iowa, 28S, and 'cases cited. St ate y. Clark. 
 6'^ Iowa, 1^5^; is not in point. There the indictment was held 
 insufficient, and in effect set aside. 
 
 Some reliance is placed on section 5157 of the Code, v.-hich 
 provides that, "when a public offense is committed partly in one 
 county and partly in another, or v/hen the acts or effects con- 
 stituting or requisite to the cons-jmmat ion of the offense occur 
 in two or m.ore counties, jurisdiction is in either county." H'ne 
 difficulty with this contention is that it is universally held 
 in such cases that the court firs-c taking Jurisdiction holds it 
 to the end. In this case the district court of Humboldt county 
 first assur.ied jurisdiction, and the indictment was not found in 
 V/ebster county until after the discharge of the trial jury in 
 Humboldt county. B^ rart e .Baldwin. 69 lov;.-.., 502; Carter v. Barlow, 
 105 Iowa, 78. 
 
 Again, the Webster county court instruct ed, in effect, that, 
 if the jury found the offense was committed in Humbcldt, then 
 they should acquit, but, if they found it v;as committed in Webster 
 county, then they should convict; -.nd, in answer to the special 
 int errogator;/, t he:!r found that the blanks in the note were filled 
 out in Webster county^ vVe do not think there was any evidence just- 
 ifying this -special "Tlnding; and, if there was, such finding is 
 by no means conclusive. If the blanks were filled out in Webster 
 county, this v/culd not constitute forger^^. At most, it would be 
 nothing more than a finding that the crime was nartlv comj^iitted 
 in that county. The e-^-idence showing the forgerv to" have been 
 committed in Humboldt county is sc strong that anv other fi::ding 
 is evidently the result o f passi on o_r rrejudice, and should net 
 be allowed to stand^^ '[fT is evident t^'attHe" trial judge did not 
 regard the finding of the Humboldt count v court conclusive on the 
 question of jurisdiction. If not conclusive, then there was the 
 m.ore reason for that court submitting the issue of venue tc the 
 jury that had authority to tsass upon the luestion, i.e. the 
 jury impanelled tc try the defendant in H'jmbcl:lt count 
 
 •^4- -r 
 
 Prom v/hatever point of viev/, it is apparent that the trial 
 court v/as in error in not ' sustaining defendant's motion for a 
 new trial. The evidence shows without diiirute that he was put in 
 jeopardy in the Humboldt count" district court, and his -nlea of 
 former acquittal should ioave been sustained. 
 
 5263
 
 Former Jeopardy 46 
 
 It is argued that a confession said to hare been made by 
 defendant v/as^not voluntary. There is some conflict in the evidence 
 on this point, and the court submitted that issue to the jur>-. Ii 
 there \vas error, it v/as v/ithout prejudice; for we are of opinion 
 that the evidence shov/s the confession to have been entirely volun- 
 tary. Some other matters are discussed, but it is not important 
 that 7/e consider them. For the error pointed out, the Judgment is 
 Reversed . 
 
 Scott V. The United States. 
 
 Supreme Court of Iowa, 1845, 1 Morris 142. 
 
 per Curiam. Iviason. Chief Justice . - The plaintiffs in error 
 were indicted in the court belcv/ for riot. Cn the trial, their 
 counsel offered in evidence the transcript of a trial and judgment 
 before a justice of the pe£.ce, v;herein Scott v/as tried and fined 
 for an assault and battery, and also offered to prove that such 
 trial and fine was for the same offense for which he stands in- 
 dicted for a riot. This testimony was rejected by the court. This 
 is the first error assigned. 
 
 We think the erridence was properly rejected, lie man shall 
 be tv/ice punished for the same offense, but here the se?ond punish- 
 m.ent sought to be inflicted is for a different offense. The great- 
 er includes the less, and the punishment for a riot wo -old be a de- 
 fense against a xirosecuticn for an assault and battery, but not 
 v'-jce versa . If the rule sought to be estr.blished In this case be 
 correct, Then dovmright murder might often escape vaith the nunish- 
 
 m.ent for a mere assault and batter^/ 
 
 Affirr.ed. 
 
 Stat e V . Fost «=r. 
 Supreme Court of Iowa, 1671. 53 lov.-a 535. 
 
 To an indictment for assault with Intent to inflict a great 
 Dodily injury, the defendant pleaded a former judgm.ent of con- 
 viction before a justice of the per.ce, on a charo-e of c^ssa^olt and 
 batter:,r, with an allegation that both charges were founded upon 
 tne same act. A demurrer to this plea having been overr^jlea, the 
 state appealed. 
 
 Beck. Cr. . J . - The demurrer co-jld cniy have been overruled 
 cy the district court, upon the view that the offensea ciiareed 
 
 5262
 
 Former Jeopardy 
 
 47 
 
 a-e in each case, identical, or the one for which defendant -vaB 
 conVicted before the justice includes the one cnarged ^^ t^e 
 indictment. Put neither proposition can be admittea. me demurrer 
 therefore, ought to have been sustained. 
 
 and battery, and assa'-iLt 
 are degrees of the sanie 
 named is of a lower 
 the higher degree. To 
 While an assa-xlt, v/ith 
 
 Admitting that the offenses cf assault 
 with intent to commit a great bodily injury 
 offense, it must be conceded that the first 
 degree, and does not include the_ offense of 
 this proposition-Thtre lidhfr be- no objection, 
 an intent to commit a great bodily injury, may include an assault 
 and battery, it is clear that the assault and battery cannot in- 
 clude the higher assault; the less cannot include the greater. A 
 conviction or acquittal, in order to be a bar to another prosecu- 
 tion, must be for the same offense, or for an offense of a higher 
 degree, and necessarily including the offense for v/hich the accused 
 stands indicted. It follows that a convict io n or acCiuittal for a 
 mino r o_f fens e is no bar to a prcsqcui~ion rT5-yC£ grea ter •t^ii'tmati, 
 •^cept TnT^eT^c of acquittal — f u r ■■ iilS^s 1 aught er v/ltTCh v/ould bar ' 
 an indictment for murder, for the reason that if the defendant was 
 innocent of the killing, without mialice, he could not be guiltj; 
 of the killing with malice. Scott v. U. S., Morris, 142; Hunt v. 
 St at 9. 25 Miss. 37S; Burns v. People, 
 
 1 Parker, 182 
 
 This is substantially the 
 Revision, which is in the folio 
 has been convicted or acquitted 
 consisting of different degrees 
 be a bar to another indictment 
 mer or for any lower degree o f 
 necessarily included therein. "~~ 
 v-^as convicted of an assaulT* and 
 to the offense of assault with 
 which is a highe :>,cf f en se. and 
 offense, assault and b'kttery, o 
 
 rule of section 472C cf the 
 wing language: "When the defe.idant 
 , upon an indictment for an offense 
 , the conviction or acquittal shall 
 for the offense charged in the for- 
 th at offense, or for any offense 
 Now we nave seen that defendant 
 battery. This conviction is no bar 
 intent to do a great bodily injury, 
 not necessarily included in the less 
 f which defendant was convicted. 
 
 Reversed . 
 
 State V. Gleason. 
 Supreme Court of Iowa, 1881, 56 Iowa.. 2C 3, 9 N . W. 126. 
 
 Seevers 
 ""ollows 
 
 J. - 
 
 . " _•_ - The defendant pleaded a forraer convict ion. as 
 "That as to the alleged stealing of- the monev and 
 
 . ,. . ^ . „ ^ ^ -- — -^. in this 
 
 indictment charged against him, he was on - dav of September, 1880, 
 charged by infonnation on oath in due form before John A. Jones, 
 a justice of xhe peace for Polk county, Iowa, and being arrested 
 
 526 3
 
 Former Jeopardy 48 
 
 plead to said charge, and the said cause coming on for trial before 
 said justice a judgment of conviction v/as rendered against tnis 
 defendant by said justice, and he was ordered by said judgment to 
 pay a fine of twenty dollars and costs, thirteen dollars of v/hich 
 fine and costs he then and there paid and v/as discharged. _ And the 
 defendant says that the said charge v/as and is the same charge of 
 stealing which is preferred against him in the indictment, and he 
 is the same person who was prosecuted and fined as aforesaid before 
 the said Jones . 
 
 And the defendant further says that the prosecution before 
 
 the justice of the peace was not procured by him, v/as net in any 
 
 wise fraudulent or collusive, and that he v/as arrested, charged and 
 
 fined at the instance of prosecutors who were and are in nov/ise 
 
 in his interest, and this' he is ready to verify. The defendant 
 
 brings now here into court attached hereto the said information 
 .... . . - - . . , . . ^^^ 
 
 lunt. 
 
 To the foregoing plea of former conviction the State de- 
 murred on the fcllov/ing grounds: 
 
 1. The indictment charges larceny from the person and de- 
 fendant was charged and convicted of petit larceny. 
 
 2. The offense charged is not the offense for v/hich defend- 
 ant was convicted. 
 
 3. The justice had no jurisdiction of the offense charged 
 in the indictment and could not convict him thereof. 
 
 The defendant was charged and convicted before the justice 
 v/irth the crime of petit larceny, v/hich is a misdemeanor punish- 
 able by fine or imprisonment in the county jail. The indictment 
 charges larceny from the person, v/hich is a felony. The statute 
 defining the crime is as follows: "If any person comjnit the crime 
 of larceny by stealing from any building on fire, or by stealing 
 any property removed in consequence of a:-, alarm caused bv fire, 
 or by stealing from the person of ^nothei-, he shall be -ounished 
 by imprisonment in the penitentiary not exceeding fifteen years." 
 Code 3905. 
 
 I^ "t^e State v. Foster. 33 lov/a, 525, it was held that a con- 
 viction before a justice of the peace on a charge of assault and 
 toattery was not a bsr to an indictment for »issauit with intent to 
 commit a great bodily injury, based on the same transaction. The 
 correctness of this decision cannot, we think, be successf'olly 
 denied, because the person charged v/as not tried before the justice 
 10 r the intent with v/hich the assa-jlt v/as committed. The intent 
 originated v/ith and was the act of the defendant, rie alone was 
 responsible therefor. The intent graded the crime, or rather be- 
 cause 01 it there v/ere tv/c crimes. 
 
 526 3
 
 Former Jeopardy 49 
 
 Sc in rcbberj-. For there must be force and violence or 
 putting in fear. Therefore it nay be said a convict icn for the 
 larceny v;ould not car an indictr^ient for the robbery because the 
 person" charged iiad not been punished for the whole tning - crime 
 or crimes committed. This is true also as to a breaking v/ith in- 
 tent to corni.at larceny, when the offender has 'ueen acCiUitted or 
 convicted of the larceny c^nly . 
 
 17ov,- in the case at bar it v/ar? net essential in order there 
 chould be a conviction under the indictment that an assa-oit should 
 be established. It is, however, difficult to see hov/ there could 
 be a larceny from the person v/ithcut a technical assault. V/e 
 apprehend, however, if a person should be sleeping on the ground, 
 v;ith a hat lying loosely over his face, the crime v/cjld be com- 
 plete if ancther sho'Jild steal and carry away the hat v/ithout dis- 
 turbing the sleeper. Other cases of r'like character m.iffht be 
 suggested. The intent is and must be the same if the larceny be 
 by stealing from the person or from a house or other place. The 
 Intent is the same in' grand and petit larcenv. The St at e v . 
 Murray. 55 lov/a, 530 . Stealing frcmthe person is larceny and 
 nothinr more - it is so designated in the statute. For the lar- 
 ceny the defendant was tried'and convicted by the jurtice of the 
 peace. 
 
 Suppose a person rightfully enters a building on fire and 
 feloniously steals and carries av.'s.v Tsro-nerty anc. is charged 
 and convicted v/ith the larceny, should he l e again riunished be- 
 cause the building v;as on fi:-e, or if -punished for stealing goods 
 removed in consequence of a fire, vihculd he be again runished for 
 the sam.e thing . 
 
 In Minnesota there is a statute making it a felony if larceny 
 is cciw.itted cy stealing fron a shop. In the citate v. wlies. 
 (i^inn.) 4 IT. v;. Rep, 615, the defendant was indiorec~under the 
 statute aforesaid for stealing a hat from a shop. The defend'nt 
 pleaded a former conviction for the same larceny before a justice 
 of the peacs. It was held this was a bar and he ccold net be again 
 prosecut ed. 
 
 In this case the only intent on the t-art cf the defendant 
 was to com-mit larceny, and as he had been T5unished ^cr a.1.1 thet he 
 did or intended to do, it was held he ccald not c e again punished 
 for the same offense. 
 
 TV^o ^15® st-tute crest es the offense and declt.res the T^unishment. 
 The^de.enaant commr.tted the offens*-. and the State ^n the first 
 "^'^l^^t ^^^-^^ ^° chargr or allege a fact which v;ouId 5 f estab- 
 J-'f^^S!;^ ;rrZ'^i^^^ pun:sh:ient. But such fact vras not caused 
 :;:.;^7,;?,5^;J ^:- *^^ defendant. The extent of -he ^unish^^ent 
 ?h:^ d^ferl.;^^'- gradethe crim.e or ceate f.vo offen^^es. so that 
 
 defendant car. be t'.^-ce punished fo- the sa-re t-- v-r.pct <on 
 
 526 3
 
 Forraer Jeopardy 5C 
 
 Before this can be done the defendant nust have done Bomething 
 with an intent for which he has not been punished, or because of 
 the act done, it can be said two offenses were embraced tnerem. 
 
 Beyond doubt, we think, if the defendant had been acquitted 
 when tried before the justice, this should be a bar tc another^ 
 prosecution for stealing from the person, because if he was not 
 guilty of larceny he could not be of stealing from the person. 
 The deT-endant, therefore, ccidd not be convicted in this CKse 
 urJ-ess the State established the larceny, and for this ne nus been 
 punished. The demurrer, should have been overruled. 
 
 Reversed. 
 
 Stat p V . Price. 
 
 Supreme Court of Iowa, 1905, 127 Iowa XI, IC 3 IT. W. 195. 
 
 The defendant appealed from a judgment of conviction of the 
 crime of incest , 
 
 Deemer. J. - Cn April 24, 1902, the ffrand jury of Ringgold 
 county for the April terra of the district court held therein 
 returned tv/c indictments against the defendant; one for the crime 
 of rape, and the other for incest. In each defendant wa-3 charged 
 with having had intercourse with one Gertie Blackmore, a step- 
 daughter, who was under thegge of fifteen years. The chars-e of 
 rape was first tried to a jury, resulting in a verdict of not 
 guilty. Thereupon defendant wag placed upontrial for incest. To 
 the indictment for that offense he pleaded not guilty, and also 
 pleaded his former acc^uittal of the charge of rape as a bar to the 
 charge of incest . and as an adjudication that he was not guilty of 
 incest. A demurrer to this plea was interposed by the State, v/hich 
 was submitted and sustained. Defendant also ofiered in evidence on 
 the trial of this case, which was for incest, the record of the 
 proceedings in the rape case; objection to which was sustained 
 by the trial court. After the evidence was all adduced, the jurv 
 m this case was instructed that defendant must be convicted, if" 
 ^^3. ^'^'^•^ ^°-^ ' "^ ^^" ^'^ sexual intercourse which took place on or 
 ; t^- l.slrrniber 12, 19C1, thereby excluding from the consideration 
 of the jury any act of intercourse which occurred prior to that 
 date. £ach indictment charged that the offense named therein was 
 coramioted on the 1st day of the preceding October. Cn the trial for 
 J^;| tj^ State was permitted to prove all acts of intercourse 
 thr Jn^M? ^^'^^t ire period included within the indictm.ent; but at 
 to 4l,^ M^ni"^ °^ ohe evidence it was compelled to and did elect 
 0° about Oct o?LT«.S^ intercourse said to have been committed on 
 list If-^- iff l^L^^^' ^-""".^^^ t^^al o^" this case the State was 
 till \lnt.':t I : to prove various acts of sexual intercourse with 
 0? tSe ie?-.S ^f .f^ J^^ conclusion of its evidence on motion 
 ^Tovernber l2.iiSi/' "' ^^ '" """'^^ ^^°^ '^ ''^ occurring 
 
 5263
 
 Former Jeopardy 51 
 
 In one of its rulings on the introduction of testimony the 
 t-ial r>o-^t s?id: "In this cF.se the State has selected tre l^tn 
 of iTovemrer. Another date. The court is of the opinio:: that even 
 i^ it should be held thet the indictment for rape if^cluaes z-.e 
 crime of incest, thrt this is a prcsectuion for another end drs- 
 tinct act of sexual intercourse from wnat the prcsectxticn v/^s 
 based UTDon in the othex^c^se. Ta::ing in view of the .act .he State 
 
 elected' be-fore to der^end arjon the date of October ZStn, 
 
 and in viev/ of the fact that the State nov/ depends upon an entirely 
 differer.t date, the objection is sustained." In various^ other v/ays 
 defendant raised the question of former acquittal, and the point 
 nov; ^resented for decision is, was the plea of former acquittal 
 sustained? As the rirosecutrix v/as under the age of consent, it is 
 conceded that the same testimony would he-re supported either charge, 
 and that the indictments covered the same periods of tim.e. The 
 verdict of acquittal in the rape case v/as necessarily,'- a finding 
 that defendant had not had intercourse with the prosecutrix at any 
 time during the period covered by the i nd i r\rr.ent . True, rape is 
 not a cont inuing' of f ense, but under a general charge, such as v/as 
 made in this case, all acts of illegal commerce v/ithin the period 
 of the statute of lir.itations might be shov-Ti; and in such cases a 
 general verdict of acquittal is an ac^iuittal of all. St at e v . 
 Parish. 104 r. c. 679 (10 S. E. Rep. 457); pr o -er v. Stat e, 85 ./is. 
 615 (55 if. w'. Rep. 1055;. But it said that, as the 3ttt e elected 
 in the rape case to rely upon one late, and in ihe incest case 
 upon another, these rules do not a^oly, and there was no former 
 acquittal, nor was the defendant in jeopardy in the rape trial for 
 any other^act of intercourse than the one relied upon by the State, 
 to-wit, the one occurring on October 26th. This is a virtual con- 
 cession that the doctrine of former acquittal applies, but that it 
 only applies when the State relies ut)on the same and identical 
 transactions. The concession is manifestly sound, but the qualifi- 
 cation is not, unless all rules with refe-^ence to ieopardv are mis- 
 appliea or misunderstood. A few suggestions will disT50se' of the 
 _Gllacy involved in this contention. Suiorose, after the jury had 
 teen imisaneled and sworn in the rape case, and before the State had 
 teen compelled to make an election, the court had imp-or^erlv d-:rect- 
 
 We 'ent''^Mp/??/f'"r^!^*: °'' ^'^'^ ^^"" ''■''y °^-^^ ^c* which wo-ild 
 thit -S^Hi?l^ /^r^^-^* *° ^ discharge, wc^oid it be contended 
 oSln^S • f^*^^""^ ^t^ """^ "'=^®" ^" jeopardy as to ever- act or 
 Sion anotSei"?? '''''''^' '"^'^ ?'"'^^^^ ^^^ 1 ^^^itat ions? Could the state 
 ^hlthll^tl '.Ji^^/V''?^" '-^-^ ^^■^"^■^" °f another indictment, cover- 
 made no ef2?t?or tV/ * '-'"^' -^"^cessfully contend that, as 'it had 
 Jav th^t it U?SnHp? ''^'■'^^r'^^^°P^'^^^ ^^ ^^ ^-^y Offense? Could it 
 one VS Al f]^J fti' '^ '"^-^^'^ ""P^'^ *° ^^"^ ^^ election, to select 
 another'-^ Marrfe.-v "IZ^^rVi^^ °^ '"^^ """""^ indictment ..as for 
 
 ^?ii?^?tSS ?^i1 Hr-^ -- ^har;^nihe 
 
 trensac^i;:;^rrce;?:irianf ^^i^. ^%^l^tt ^^^^ ^ ^^"^^" 
 
 may r^llvTTs I'r^T'^'lfi '^^^* ''' ^'^'^'^^ ^^ this kind the state 
 y P ove a.s a P...I, o. its case every act of sexual intercourse 
 
 526 3
 
 Former Jeopardy ^2 
 
 oetween the parties within tue period of the statute °J li^i^/^f^f^' 
 and ever^r act so proved v/ould undoubtedly, under the conceded lac.s 
 !n thircate hive constituted both incest and rape When con- 
 belled t ollect the State undoubtedly chose tnat act v/nicn it had 
 thp most evidence to sustain; and the verdict in the rape case was 
 "u^ely an Ic4uittal of all acts which v;o-uld constitute rape cornmit- 
 ?ed within the period covered by the indictment .That ir- to say, 
 it was. in effe?t. a finding that the defendant had not had inter- 
 course with the girl at any time within the period of t ime covered 
 bv the two indictments. State v. Stone 75 Iowa, 215. But lOr a 
 statute which prohibits the cnarf'^mg of two separate o_fenses m 
 the same indictment, the crime of rape may be charged in one count 
 of an indictment and the crime of incest in another. Porath y. 
 State . 90 Wis. 527 (63 N. W. Rep. 1061, 48 Am. St. Rep. 954); 
 Com. V. Parker. 146 Pa. 343 (23 Atl . Rer) . 32 3); Com, v. Goodhue. 
 2 Mete. 19 5; Com, v. Squires. 97 Mass, '59. So also, may for«ifi- 
 cation and rape be joined. Jackson v. Stat e, 91 'JVis . 253 (64 JT, '.V. 
 Rep. 838). This being true, it follov/s, we tnink, that an acquittal 
 in such a case is an acquittal of both offenses during the period 
 coverecd by the indictment. The mere fact that these offenses 
 cannot nov/ be joined in this State under our criminal procedure 
 does not change the rule as to the effect of an acquittal. In 
 State V . Thomas. 5 3 Iowa. 214, it v/as held by a divided court that 
 rape and incest cannot be charged in the same indictment; or, 
 more properly speaking, that the crimes charged in that particular 
 case could not be joined. The soundness of the argument used in 
 that opinion was challenged in State y . . Hurd^ 101 Iowa, 391, and 
 in the latter case it is expressly held that incest was there in- 
 cluded in the crime of rape, and that upon a trial for incest 
 proof of rape upon the prosecutrix might be given. See pages 402, 
 403, of 101 Iowa. See also State v . Kouhns, 1C5 Iov;a, 72C . 
 
 •In the absence of statute, it is the general, if not the 
 universal rule that to sustain a plea of former acquittal it need 
 not be shov;n that the offenses are the same. The test sustained by 
 all the authorities is whether or not, if wliat is set out in the 
 second indictment had been proved under the first, there co'old have 
 been a conviction, '^en there could, the second cannot be main- 
 tained; v/hen there could not, it may be. Or, putting it in another 
 way, and in the manner in which it is usually stated the test is 
 whether the first indictment -was such that the accused might la^v- 
 f\aiy have been convicted under it, on proof of the same facts as 
 those by which the second is to be sustained. Stat e v . Stone, 75 
 Iowa, 215; V. S. y. Hickerson, 17 Kow. (U. s.) 204 (15 L. Ed. Cl9); 
 Dill V. People. 19 Colo . 469 936 ?ac . Rec . 229, 41 Am. St. Rep. 
 254 J; mTso nv. State. 24 Conn, 57; Roberts v. State. 14 Ga. 8 (58 
 Am. Dec . 528 j ; Smit h v . Stat e. 85 Ind . 55 5; State ^^^"Keo.gh. 13 La, 
 Ann. 243; Com, v. Robey. 12 Pick. 496; Ro c cc v. State. 3? Hiss . 
 357; State v Jesse"; St^ IT. C. 98; Price v. State. 19 ^Chio, 423; 
 Parchm an v. StateT ~2 Tex. Apr?. 228 (28 Am. Rep. 4 35) ; State r. 
 u ^ f ^"^f;~ 87 Iowa, 255. In State v. Hurd. supra, it is squarely 
 held that the same testimony mav support tne cnarge of either 
 
 526 3
 
 53 
 
 Former Jeopardy 
 
 incest or rape; and. if the indictments cover the ^^^J^'fJ^l^^S^^^ 
 time, it is ?lear that an acc,uittal of °f ^,.^^1^^, f g^^f rV^'^"*"^ 
 other. In State v. I^ickesell, 70 lov/a. 17d it is held t-a..t a 
 former acquittal of the cHi^e of larceny is a bar t° J P^J,^f ^ 
 tion for robbery for the taking of the ^^f , ^^^f^ : ^^^^|-^ncauit. 
 charges are not the same, but, as said m tne opinion, ^ne acquix 
 tal In the foimer charge then is a Judicial j^t ermmat ion t^^f^^ 
 was not guilty of the larceny cnarged ^-f^^^^f ,^f^fj-^f^' ^hich he 
 the same property that is describea in ^^^ -I^^,\':^f J'':„^^^J, 'f^ent 
 v;aE convicted. That acquittrl is a har ^^. ^^-J^'^^^^^J^Jj^'f^'^Xich 
 for the larceny of the property, lut lor any otner offense f^^J^^-'^ 
 such Ir^-cenv is an essential element." In Scott v. U- Qy '.^"-f^^^^ 
 (Iowa) 142. ^ it was held that an acquittal for r.anslaugnt er is a bar 
 tc an indictment for murder, on the theory that the acquittal was 
 a judicial determination that the defendant did not unlawfuJ.ly taKe 
 the life of the deceased, and, ccnsequentij/, was not guilty of anj' 
 offense of which such unlawful killing was a necesary element. In 
 State V. Gle ason, 56 Iowa, 2C 3, it v/as held that a conviction for 
 net it larceny before a justice is a bar to a subsequent prosecution 
 en indictment for larceny from the person; the reason given being 
 that, if defendant had been acquitted before the justice, this 
 v/c^old have been a bar to another prosecution for stealing from the 
 person, because if he was not guilty of larceny, he could not be of 
 stealing from the person. In Stat e v . lil urray, 55 Icwa, 530, it is 
 held that a conviction for petit Tarceny is a bar to a prosecution 
 for grand larceny based upon the same facts. In State v. Copper, 
 15 N. J. 361 (25 Am. Dec.^49C), it was held that one convicted of 
 arson could not afterwards be tried for murder, in the commission 
 of the same arson, vmere the statute imposed the penalties of 
 m.urder for such arson. In State v . Lev/is , 9 IT. C. 95 (11 Am. Dec. 
 741 ), it was decided that, wnere two indictments for a felonious 
 taking of goods v/ere found against a prisoner, one charging him 
 v/ith burglar^'- and larceny and the other v/ith robbery, and under the 
 first indictment he was convicted of larceny, he could not be tried 
 upon the second indictm.ent . See, also, Roberts v. State, supra . 
 
 but 
 
 October 28th and in the other upon an act committed on November 
 12th, they do net aprly, and are not cent rol?. ing. This prOT)Osition 
 is unsound, Vlflien the jury war sworn in the rs,t)e case, defendant 
 was in jeopardy as to every act of intercourse committed by him 
 with the prosecutrix during the period covered bv the indictment; 
 and upon a verdict of not guilty being returned the State co'old not 
 have reindicted and tried him for an act of intercourse committed 
 at some time within the period covered by the indictment, for v.-hich 
 the State did not elect to prosecute. This is fully established 
 by the authorities already cited. If thp acts of intercourse with 
 the_^ prosecutrix were entirely distinct and separate offenses, and 
 could not have been proved under the original charge of rape, there 
 would be much force in the t)Csition taken bv the State. B'Jt in 
 these sexual offenses it is competent for the State to prove any 
 
 5253
 
 54 
 
 Former Jeopardy 
 
 a.d all acts of intercourse between the Partxes durxng tne t ne 
 covered by the iudictxent at ^^a^t;/^^Ve -^.^^^^^ense 4? elligent- 
 own protection. -^ l^Jf^l'^^l^:/':^:^. tlill^^^ rely, 
 ly. may require the State oO el ec.upo^^^ required all the testi- 
 
 Rtate rr, Hurd, supra. _i?^t .v,nen e.e . lo. i^ r q ^.^ ^^^ ^ 
 
 ^i^T^r^s-to other acts remains in the case, ana as saxd __ ^ 
 
 V . Harmison, Fed. Cas , No. 15, 2C8 {■:> ^a;-^! J- ^^'^ ly.. _,-,g ^^^^ "but 
 whether the defendant has already ceen tried for '^^^ ^^ff ^J^at de- 
 '^hether he has "been put in jeopardy ^^J ^J^/^^!, ° ;J,^^U^,-,^.se de- 
 fendant was in jeorardy as to every act \f eexua inte^c^a^se D^ 
 tween hin and the prosecutrix covered oy tne l^J^-^tmen. .o Tc^pe 
 is verv c-iea- The defendant may waive his right to move t.°T/" 
 eieltSn en the part of the State, and if he dees so there "S no 
 Sum Of the rule here announced. When he Joes move, and tne elec- 
 tion is made, he is nevertheless compelled to ^ J^^^f^/'^ft^^fi- ^ J- 
 ac-^-. Tut ^-r e^ridence hy the State. In many cases the exec. .on is 
 said to rest in the sound discretion of the trial court,_ and v;nen 
 made it is for the benefit of the defendant to ^enable nir t c pro- 
 Tjerlv meet the chare:e; and, as said m tne hura Case, supra^ There 
 is a manifest difference bef.veen cases in which tne evidence as uO 
 other offenses is properly admitted (as in this case) as tearing 
 upon the tjarticular offense and where it is not aamissitie. • _ .n 
 rape and other like cases an election may be required, but aix tne 
 testimony as to other acts of sexual intercourse rerriains m the 
 case, having -orobative force, and the effect is that the defendanx 
 is in jeopardv as to each. The State, in electing to Prosecute 
 for the one. in legal effect waives all the others, save that tne 
 ethers remain in evidence as a p? rt of tna State's case. St aT._e y ._ 
 S mall ey. 5C 7t . 753. This is andcubtedly the rule as to continuing 
 offenses; and we think it also applies v;here the offenses are cf 
 the aame nature or species, so that the evidence which proves the 
 one would also r>rove the other. H olt v. 3tate, 36 Ga. 187. In 
 Commonwealth v.\^.rner 149 la. 35 (24 /tl . Rep. 83), it is express- 
 ly held tnat one who has been convicted of fornication and bastardy 
 cannot thereafter be tried for rape for the same act. See, also, 
 lynch V. Com. 18 Ky , 145 ( 35 S . W. Rep. 264), arA 2r;j^nt _v_^_Stat^ 
 lArk.j 81 S. a. Rep. 234, 
 
 But, 7/hatever the rule at common lav; and in oth<^r jurisdic- 
 tions, the m.atter is settled for this State by stst'jte. Code, 
 section 540 5, provides that a v erdict of not guilty imp ort- _s an 
 acq uittal on every material aliegatlon m th^ indictftiVr if: In ^ he 
 rapt*' ciiarge time was not ri'S-t erial, and the State could^have showri, 
 as it did, intercourse betv/een the parties; at rny time within 
 eighteen months prior to the finding of the indictment. The effect 
 of the allegation in the indictment was that -^^-ithin eighteen months 
 prior to the time of the finding thereof defendant hpd had inter- 
 course with the prosecutrix. The verdict in the rape case acquitted 
 him of that charge. Unless he did have intercourse with her, he 
 was not guilty of incest. The two indictments cover the same period 
 cf time, and, while the offenses charred are not necessarily the 
 sani^ they are cf the sam.e nature or species - that is tc say are 
 
 5263
 
 Former Jeopardy 55 
 
 both sexual offenses - and evidence which would prove the one wo^jld 
 als- ■rv£i^r£:..:u\e other. Identity of the transactions re..ied upon is 
 not a t.roper test, for a sin-le act or transaction may contain 
 elements each of which sa;e. c-irr.es under different statut^is; and, as 
 we have alreadv seen. TcTeHtity of oferge is net the te^i^It is_ 
 enocigh if an acquittal of one shows that the defendant cculd nOo 
 
 ha^rt:KiMZEmXl7T~'y-^~^rk^^-^^i'^^:^£X^ I-IiMtt v_Ls. C-mins.x JLaw^.. 4j2-456. 
 
 In State v. Waterman. 37 lo-wa, 255. in construing the statute al- 
 realy~ref erred to, v/e held that an acquittal upon an inaictnent 
 for ccBtructing a highv/ay was a bar to another indictment which 
 covered a part of the t iiiie included v/ithin the first indictment. 
 This was net because the offenses were each continuing in character, 
 but because there v/ere common elements in the tv.o charges covering 
 a part of the same T^eriod of time, to-wit, first, the existence of 
 a highway, and second, its obstruction by the defendant. Applying 
 the test heretofore given as to whether the evidence to s Cq:>pc rt _ t he 
 second indictment would have justified a conviction under the first 
 we found that, as the time in the tv^c indictments overlapped, the n 
 same evidence might have supr>orted either c,har^. and that, as the 
 highv/ay was the same in each case, and the evT^nce as to the ob- 
 struction rrie-ht have been the same for a part of the r>eriod ccverea 
 by the two indictments, an acquittal on the former indictment v/as a 
 bar to a prosecution under the latter. Further, it was said that 
 under the provisions of the statute to which v/e have referred the 
 acquit-cal under the first indictment v/as a finding that there was 
 no highv/ay which the defendant could obstruct; that this finding 
 was conclusive, and could not be again inquired into in the same 
 kind of a criminal action. That the crimes of incest and rape are 
 of the same general nature - that is to say. are sexual crimes - has 
 already been shown, and. if there were any doubt about this proposi- 
 tion, it is now settled by the Hur d Case, supra . In both rape and 
 incest the criminal act is t h e u rH g^>vf 'jl, carnal kj QCLwl edge of a 
 woman. ;iS the offenses ere of tTTe s^^me nature snd species, the rule 
 announced in S tate v. W aterm an, supra, must govern, and unless we 
 overrule that case we must rearers e this . 
 
 Believing that that case v/as correctly decided, and that under 
 well-knov/n and familiar rules the doctririe of autrefois acquit 
 applies, v/e must hold that the trial court was in error in its 
 rulings with reference to the rlea of former acquittal. The judgment 
 must therefore be, and it is reversed . 
 
 5263 
 
 f
 
 Part II 56 
 
 Proceedings preliminary to Trial. , 
 
 Chapt er IV . 
 
 Steps by the State Prior to Indictment. 
 
 Section 1 . 
 
 Introduct ion. 
 
 No man can be tried for crime during his absence, except that 
 the Code authorizes a defendant to be "nr esent" by counsel of th e 
 trial as f"r_p_jilademPnn^r {'^'^^'j His presence or representation 
 at tfie tt-ial is necessary even if, as is usually the ctse, tnis is 
 obtained without his consent. But his presence is not essential 
 to the finding of an indictment against him. The grand jury oan 
 decide whether he shall be tried for crime although he is still at 
 lar ge, but in actual practice it is not usually customary to v/ait 
 for the indictment before making the arrest, lest the accused dis- 
 appear in the meantime. Under certain circujnstances this arrest 
 may be made v/it'hout a warrant. When such circumstances do not 
 exist a warrant is necessary for the arrest, and even where they 
 do exist a warrant is advisable if to obtain it will net increase 
 the probability that the accused will escape. 
 
 From this it is apparent that the order in which these steps 
 are talcen is not always the same. SometiriieH the defendant is indic- 
 ted, after which there will be issued a tench warrant upon v/hich he 
 is arrested. At other t inies he will be arrested without a v/arrant 
 and subsequently indicted. £ut we are apt to feel that the normal 
 order for these events is that the wa rrant should precede t he arr est 
 and the,_indictment_should come_ aft ervya i;ds . It is in tHis order that 
 they wilT^e TTl?T'e~^hsTd%YeaT" The discussion so far has had refer- 
 ence to order only and has not disclosed all the steps which will 
 be taken. ^^or example, if we assume that the arrest precedes the 
 indictment, and is made under a warrant therefor, the full proce- 
 dure will be as follov;s: First, a complaint v/ill be filed; second, 
 the magistrate v;ill is^ue a warrant, for the arrest of the person 
 accused; third, some peace officer will ar-^estthe accused by virtue 
 of this warrant; fourth, the arrested person will then be taken 
 before the magistrate for preliminary examination; fifth, the re- 
 sult of the preliminary examination v/ill be that the defendant is 
 either discharged, admitted to bail, or committed to jail - if com- 
 mitted to jail the magistrate makes out a warrant of commitment 
 which he delivers with the defendant to the officer; sixth, the 
 county attorney then files^an information against the defendant or 
 draws an indictment to ta^ before the grand jury v.-hich may either 
 "find" or "ignore" it. If the grand jury "finds" the indictment 
 against the defendant and he pleads not sruilty thereto, he will 
 subsequently be tried by a petit jury. 
 
 Misdemeanors "in which the punishment prescribed by law does 
 not exceed a fine of one hundred dollars or imprisonment thirty 
 
 526 3
 
 Proceedin&s Preliminf/.'-y to Trial. 57 
 
 days" (5575) are nonindictable offenses f-.nd r.'.ust ce tried before a 
 justice of the peace of t'.ie county in v/hich the offense .vas committ< 
 ed. The procedure is ^uit e similar to thot already outlined up to 
 the point of the preliminary examination. Instead cf tnis pre- 
 liminary examination the justice tries the defendant and the judg- 
 ment of conviction or acquittal, entered as a result of this trial, 
 ends the proceedings unless an appeal is taken. 
 
 Before considering the separate steps tP'ken "by the 
 ;hould mention the various modes of accusation. Cur sys 
 sermits no man to le placed on trial for crime unH. ess h« 
 
 St at e Y/e 
 /stem cf lav; 
 permits no man to le placed on trial for crime unD. ess he has been 
 formally charged with the ocmmiss1.cn of a public offense. This 
 is one cf the fundamiental concept :'.ons of the common lav/. This 
 formal accusation must set forth the particular offense v;ith which 
 the person is charged, and -nay ta^ce the form of (1) a complaint, 
 (2) an indictment, (3) an information or (4) the finding of a 
 coroner's jury. 
 
 At common law one formally accused of homicide by the finding 
 of the coroner's jury could be arraigned and tried thereon, so 
 thnt it had the force and ef-"ect of an indictment. But in this 
 state an indictm.ent or information m.ust follov/ before the accused 
 can be placed on trial (513 to 533) so thfr.t it has rather the 
 character cf a comiolaint than an indictment. 
 
 Section II. 
 
 The Ccrapiaint . 
 
 A complaint is a v/ritten accusation of a public offense, 
 sworn to and filed .^bv a -g rivate individual, before a magistrate. 
 
 St at e V . St o ut . 
 
 Supreme Court of Iowa, 1887. 71 lov/a 343, 32 IT. V/. 37S. 
 
 The defendant, having been convicted of adultery, appealed, 
 
 Seev ers, J. - The indictment, among other things, states 
 or charges txTat thi3 prosecution is commenced on the cor.pl a int "of 
 the wife of the defendant." It is provided by statute that "no 
 prosecution for adultery can be commerced but"^ en the com.Dlaint of 
 the husband or wife, " (Code, 4CC8, ) and the only question -.76 
 are called on to determ.ine is whether this prosecution is so 
 commenced. 
 
 In Bush V. '.VorlnTian. 64 Iowa, 2C5, it was said that the statute 
 
 5263
 
 The Complaint . 52 
 
 is? plain, easily understood, and that it foi-hids prosecutions for 
 adultery except v/hen the same are conmenced on the complaint of 
 the husband or v/ife. 
 
 In State v. Henke, 58 Iowa, 457, it v/rs held that an aver- 
 •ment in the indictment that the prosecution was ccmmenced on the 
 compiaint of the wife was insufficient, and that the fact that the 
 prosecution v/as so commenced was mat e rial, and must be established 
 on the trial , 
 
 But in State v. Donovan, 61 lov/a, 278, it was held that such 
 fact could be established 'cy a preponderance of the evidence. In 
 the same case the court instructed the jury that if the defendant's 
 wife ^'appeared before the grand .jury in response to a subpoena, 
 and testified in the case, but not intending to prefer the charge 
 of adulterj-- against the defendant; but gave her testimony supposing 
 she was required to do so, this would not be a complaint of her 
 against her husband, within the meaning of the law." It was said 
 that this instruction announces a correct rule. 
 
 In the present case, the court instructed the jury that, if 
 the wife of the defendant v/ent before the grand jury as a witness, 
 e-xen though she did so in obedience to a subpoena, and testified 
 as a v/itness, this would be sufficient to sustain the averment in 
 the indictment, in the absence of evidence to the contrary, that 
 -the prosecution was commenced on the complaint of the defendant's 
 v/ife. It seems to us that this instruction conflicts with the 
 instruction which was approved in State v. Jo nova n. above cited,, 
 iesides this, a complaint we understand to be a formal allegation 
 or charge, preferred by some one against another, to an appropriate 
 court or officer. Such a complaint, the statute requires, must be 
 prefe-rred by husband or wife. The indictment is not necessarily so 
 preferred. Mrs. Stout no doubt testified to certain facts t'eT'ore 
 the grand jury, and it will be conceded that she could not have been 
 compelled to testify, but still she may not have believed h'5r hus- 
 band guilty, and did not intend to prefer a complaint against him. 
 The mere fact that she testified as a witness is materially differ- 
 ent from preferring a complaint . She in fact made n c^j^ioiap laint. 
 but simply responded to such questions as v;ere asked her, tie think 
 the instruction above referred to is erroneous, and that there is 
 no sufficient evidence showing that Mrs. Stout made a complaint as 
 provided by statute. 
 
 Reversed. 
 
 Beet ion 3. 
 The Warrant . 
 
 The warrant, which is issued by the m.agistrate upon complaint 
 filed, is directed "to any peace offi cer of the state" (5183 and 
 
 526 3
 
 The Warrant ^® 
 
 5134), and may be served in any county in ^-^Vl^^ ^..i^;- h'-he^ 
 chief problem in connection with the warrant has .o dc_ v/.un .he 
 circiarStances under v;hich it is required; and conr-erse.y. tnose 
 under which no v/arrant is necessary for the arresu . 
 
 Yount V. Carney. 
 
 Supreme Court of lov/a, 1394. 91 lo-^a 559.50 IT. 'A^ 114. 
 
 The plaintiff, claiming to have teen wrongfully arrest ed by 
 the city marshal, brought suit on ohe official bond oi rnat o.fi^e. . 
 When the evidence was in. the defendants filed a ^'^^ -°^_° f^J- ;^^" . 
 diet, which was sustained and judgment was entered acco.axng.y. Tne 
 plaintiff appealed. 
 
 Given. J. 
 
 I^ The single contention is whether the court erred in direct- 
 ing a vern^ct for the defendants. There is no question out tnat «ne 
 defendant Carney, in his capacity as ci^y marshal. <^i'i. jn tiTe ev en- 
 -'ng of the fourteenth, and a^ain on the evening of tne fifteenth 
 of December, 1890, in the city of Oskaloosa, without a warrant, end 
 without the plaintiff having committed, or attempted to commit, rmy 
 public offense in hi;^ presence, arrest and detain the plaintiff in 
 custody for about two hours at each arrest. If these arrests were 
 authorized and lawful, or if the plaintiff suffered no actual damage 
 thereby, the action of the couit is warranted; otherwise it is not. 
 Section 42CC of the Code -orovides that "a peace officer without a 
 
 warrant may make an arrest (2) w hei'C a public of fense has in 
 
 fact been committed, and he has reasonable ground" tor belre^Hrft^ 
 that a person to be arrested has committed it." 
 
 Appellant contends that, under the evidence, the question 
 whether defendant Carney/- had reasonable ground for believing that 
 the plaintiff had committed a public offense should have been sub- 
 matted to the jury; v/hile appellees contend that the e^/idence sho'.vs 
 without conflict that he had reasonable ground for so believing. In 
 viev/ of the conclusion we reach, it is not proper thao v.'e should 
 discuss the evidence at length. '^e will only notice in a general 
 v.ay the authority uncer v/hich the defendant Carney m.ade these 
 arrests. He states as his authority for making the first arrest 
 "that ZLi Hawkins had a telephone from .%ltia or Eddyville, t:iat he 
 had read to hir.; stating that a horse was stolen at Albia, and tht.t 
 two men had passed through Eddyville that afternoon v/ith two horses 
 and buggies or tuckbcards, and that one of the horses resemblied 
 the horse that was stolen." Mr. Hav/ki-^.s testified that the parties 
 sending the message requested him to v.'etch the men, or get some one 
 to hold them until they got there, and that he so told Deput3'- 
 Karshal Push, and that Eush v/ent and got Carney. Plaintiff and one 
 Jackson arrived in Cskaloosa on the evening of the fourteenth from. 
 Eddyville, plaintiff driving a ho-^se to a cart, and Jackson driving 
 
 52 5 3
 
 The Warrant . 60 
 
 driving a mare to a buckboard. The first v/as msde immediately 
 nfter their arrivsl, and both yount and Jackson detained in cus- 
 tody until the iDarties arri-7ed frona Eddyville, and declared that 
 neither of the horses v;as the one thet h-ad been stolen. It is not 
 stated by any of the witnesses that the request to Hawkins to de- 
 tain the iv.en v/as communicated to Carney, but such was probably 
 the fact./ Carney examined the mare before making the first arrest, 
 and says: VI though: she was not the animol that was wanted. I 
 did not think they v/ei-e the thieves."! 
 
 ether circumstaices anpea'- in the- e^ridence proper to be 
 considered in determining^ v/hether defendant Carney had reasonable 
 grounds f o r t el i ev i n.?; that the -olaintiff had committed a public 
 offense, but. v/e have^stated sufficient to shov/that the question 
 v/hether he h^d reasonable ground for sc believing when he made the 
 first arrest shouldhave been s-jtmitted to the jury. ^The authority 
 for making the S'occnd" arrest was this: C M- Forest, sheriff of 
 Monroe county, who, it is claimed, held a v/arrant fcr the arrest of 
 men for Lors'e stealing, having heard of the arrest and release of 
 the plaintiff and o^ckson in tho fourt^eenth, comsiunicat ed with de- 
 fendant Carney by telephone on the fifteenth. Forest states their 
 communication" as"^ ft)i;.ais : "I called for the city marshal, and in- 
 quired for these parties, if he had them yet, and he said, »lIo.' * 
 I asked him v/hat he knev/ about their d eel ar^it ions, - v/hether he 
 thought them to be true or not, I think I said to him i tlioughthe 
 could search them and satisfy himself. He wanted to know if we 
 could not give him some better description of them than we had. He 
 said he had turned his? parties loose, and that they had gone into 
 the country, but he v/as looking for them back. He said, if they 
 came back, ' he would satisfy himself. He did sc and reported to 
 me." Carne3/- states it as follov/s: "IKonday e^rening, the sheriff at 
 Albia called me ur at the telershcne, qnd asked me why I didn't 
 arrest those fellov/s and sea^roXthein.. I tcld him I didinot think 
 they were the men th-at were_\vgrit ed . I said thesi men have been here 
 since Sunday, and, ,if they were horse thieves, T don't think they 
 v/ould remain quite so long. He said, »you go on and arrest them 
 and search the-..»" He furi:her states that, when he arrested the men 
 the last time, he v/os e nt i rel y s at i, s f i ed in h r s own min d that the-.- 
 were not the men who had stolen the horse. It v/ill be observed 
 that Carney testifies that Forest said, "You go on and arrest them 
 and search theFx," while Forest does net state th^t he g ave such an 
 order: thus presenting a material conflict in the ev idence. The 
 question whether defendant Carne3- had r^^Ts^TiabTe g rerun i for believ- 
 i-ng that the plaintiff had committed a -oublic offense v/hen he made 
 the second arrest should have been submitted to the jury. 
 
 Rev ers ed . 
 
 * I asked him if he knew him, and he said he did not, but that they 
 claimed that thej' were fruit-tree agents. 
 
 5255
 
 The Vferrant 51 
 
 St^te V . Phillips i 
 
 Supreme Court of Iowa, 19C2. 118 Iowa 660, 92 !T. W- 876. 
 
 Prom a conviction cf murder, with death penalty, the defendants 
 appealed . 
 
 WeaveT" J. - Albert City is an incoroorat ed town situated 
 in the eastern part of Buena Vista county, Iowa. Between two and 
 three o'clock in the afternoon of the 16th day cf November, 1901, 
 one Gilliuir, a druggist doing business in said town, received a 
 message by telephone from some person whose identity is not dis- 
 closed in the record, but supposed to have been speaking from the 
 town of Sio'jx RaT^ids, to the effect that on the night previous a 
 bank at the town^of Greenvr.lle, in Clay county, had oeen burglar- 
 ized and that three T^ersons su5T)ected to have been connected v/iti. 
 that' offense had been seen moving in the direction o: AlberL, Ci-.y. 
 GiUiuir: soon met one Iodine, a drayman, v/ho was also marshal of 
 the town ^a^'-e him the substance of the message ne clamed to nave 
 received! and told him to look out for and arrest the tnree men, 
 describing them as two white men and a mulatto, or two white men and 
 a negro; the exact phrase emtloyed being in some doubt. Later m 
 the afternoon, Lodine reported to Gillium the presence of three 
 men whom he believ'-ed to be the persons wanted, in the waiting room 
 of the railroad station a block or two distant. Gilliur^ there- 
 upon made an errand to the statioi^, saw the men. and, coming back to 
 his store^ told Lodine he believed them to be the parties wnose 
 arrest was desired. A party was then organized to effect the cap- 
 tu-re consisting of Lodine, Gillium, John Sundblad, M.H. Conlin, 
 i^. Gulbrenson, Dr. Xnee, Mr. Shob, and others. Lodine v/as arraea 
 with a repeating rifle, Sundblad with a repeating shotgun, and 
 Gillium and Gulbranson with revolvers. Whether others carried 
 weapons, and, if so, the character of them is not clear. Proceed- 
 ing" to the station, the m.arshal and his party crowded through the 
 doer of the v/aiting room in a bod;'- as nearly as possible, with 
 weapons in hand ready for instant use. As they entered they ad- 
 vanced in the direction of the suspected men, - being the appellants, 
 and one Polan, who v/as killed later in the fray, - the marshall 
 calling out, "Hands up.' Hands i*pl" Some of the witnesses also s^ he ad«J-ed 
 to this command the words, "V/e want you." Defendants and Dolan 
 immediately drev/ revolvers, and numerous shots \vere exchanged, 
 though the testimony tends to shov/ that one of the defendants or 
 t to discharge his weapon. The marshal and his 
 
 tervals defendants and Dolan came to the door and fired at the 
 posse. Cne cf the shots so fired it is alleged inflicted upon 
 Sundblad a .vound of which he died a day or two later. Finally the 
 besieged party emerged from the station, and sought to escape into 
 the country. In this m.ovement Dolan received a fatal shot from one 
 one the posse. The defendants continued the retreat, closely'- fnllowei 
 
 5263
 
 The ;^/arrant ^2 
 
 tv their TJursuers, and after a running fif^ht of several rail es -/.'ere 
 captured." The iiidictnent in this case v;as returnea joveuocr ^2, 19Gx, 
 '■nd the trial was had five clays later. 
 
 XT. The legality of the arrest or attempted arrest oy the 
 P^rshal and his t^osse is elaoorptely argued by counsel, and was _ 
 the suVject of several par?graioht: of the court's charge to tne jur-/ 
 The theory of the arj^ellants is, first, that tne rr.ars-ial, -laving 
 nc v/ar-^-ant. wes without anv j?utho-ity tc make the arrest; and, 
 second, that even if the authority exist e^^. it v/as exercised m an 
 unlav/ful manner, and thereby provoked the fight in v/hlch Sundtlad 
 v/rs killed. A jvmK M /> n-r-fi rpt-"may make ^^i^arrest v/ithcut v / arrant 
 v/^en ever a -nuy ii j: o ff en g.£— hag- p o Q n c o?rL".it^~cd, — ee^e— ixe— bps ro .?,s-aa.gtle 
 g ro i^dfoj;^ Lelievi ng t hat jtjie- pors -o n tc be arr'^'g-^ ed has -:orj7iit-tje d 
 it . Clode, secTTorr 5196 . A ^privat e_jiit izen may gxer cise lik€ 
 ailthority when a fe lo n;- has ^f e ejx 'co^rTlITlitt edi Codij section 5T97, 
 T^fe -iuyptl'on v/het n er7-g~f el ny ITad been "^cornnitt ed and v/hether Lodine 
 had reasonable grcum to believe the defendants to be the guilty 
 parties wap for the jury. vVe think it v/as sufficiently clear that a 
 felony had been corrvmittisd 'by some one. The defendants' complicity 
 in that crime is not open tc bout . The marshal, upon a somev/hat 
 uncertain and fugitive rumor of such c"fense, had his suspicion 
 directed to the men in the waiting rcoir. of the station, and under- 
 took their arrest. Had it proved that no crime v/as in fact commit- 
 ted, or that the defendants v.ere v/holly innocent thereof, it would 
 doubtless have been very difficult for hi:-.i to defend an action for 
 damages for v/rongful arrest. But so long as the r^omcred offense 
 was in fact committed, and the parties n-r-i-est e(j__wgr- g_ ^ ^^ i ^a ^t gui lty 
 thereof, the truth, when ascertained, should be held sufxicieiit 
 Justification of the act of the officer. In other „ords, if an 
 officer makes an arrest upon insufficient info mat ion he acts at 
 his peril, t:,nd- assumes the risk of being held in damages to an 
 innocent person thus injured; but if a f elon;;/_hag^ been ccm r;itt ed, 
 a.nd the off leer s_^sen^e_tjie_j;uiltylp arty v/iol^t 7uni?u e ~vro lence, 
 he does no v.Tong. In each case the information upon which he 
 
 acted is imi>«ir?rial . It would be an anomalous prot)Osition to hold 
 an officer chargeable v/lth v/rong In arresting the^ right man; 
 assuming, of course, that the arrest be made in a r)roper and law- 
 ful manner. 
 
 The manner ir which the marshal and his assistants undertook 
 tc seize tne defendants and Lolan iDresents a less clear question. 
 Tne statute provides (Code, section 5199) that a -oe-scn r^-^kin- an 
 arrest must inform the person to-be arrested o^ the intention^tc 
 ^Sstodv -o /.'-'^-^ ""^''i^^ thereof-, and requi-e him to submit to 
 rT-rZ^^,'^ ■ P^~*ic'J^^^^ '0^3^' Of wo-ds is prescribed, but the in- 
 AlTnY^^ to ^V-.-^"^^- *° *^'^ P^^^°" accused, and' o.>r,ort unity 
 lell^n^lll.l^lT'' ^'^^ anorderly snd r^eaceable manner,' unless good 
 reasons appear for the omission of such duty. It is doubtless true 
 
 5363
 
 The ■,Vrirra":t 63 
 
 thst under seme circanstances, as where t'.ie accused person is flee- 
 ing from the officer, or is making active resistance, these for- 
 malities need not ce strictly observed. That the rr.orshal 's party 
 acted in the highest good faith as citizens, desiring to vindicate 
 the lav/, cannot be c^uestioned; a;:d if the defendants knew, or as 
 reasonable men should have kno-A-n, that nothing but their arrest 'kves 
 sought, and no bodily harm was intended, then thej-- coiild net justify 
 the use of deadly weapons in resistance, even though the arrest wa^ 
 unlawful. Gn the other hand, if the posse, even though acting in 
 good faith and with no intention of violating the law, suddenly 
 advanced upon the accused with leaded guns, presented in a threat- 
 ening manner, therebv inrressing the latter, as reasonable rcen, 
 with the belief that" they v/ere about to suffer great bodily harm, 
 or be placed at the mercy of an aqgr;/ mob, then they had the right 
 to resist, and emr)loy such force as .vas reasonably adequate to de- 
 fend themselves against the attack, without regard to their guilt 
 of the ci:arge upon which their arrest was sought . The language, 
 "Hands up I Hands up'" or "Hands up! ¥e want you!" eniT^hasized 
 with rifles, shotguns, and -"evol-'ers, may, of course, be used with 
 the idea that the party thus addressed is required to subject to 
 arrest, but it must be admitted that to the average mind it ordin- 
 arily conveys a much more uncomfortable suggestion. 
 
 The defendants, even t ho ugh cha rg ed with burglary, were en- 
 titled tc the protection o^ the law and a trial in due course of 
 crim.inal procedure, and if expc^ed, or if as reasonable me:\ in vie', 
 of the display of force against them, they believed themselves ex- 
 posed, to personal violence, neither the fact of their guilt, if 
 guilty, nor of the honesty of purpose of the marshal ^nd his partv, 
 would deprive them of their right to resist. Such rightful resis-' 
 tance is, of course, proportioned to the danger tc be avoided, and 
 if in the heat of combat thus occasioned it is carried beyond that 
 limit, and death is thereby caused, the crime will be murder in the 
 second degree or manslauight er, according as malice mav or m.av not 
 be found to characterise the wrongful act. Even a legal arrest 
 whether with or without warrant, may be attemDted i/: such a violent, 
 and menacing manner tliat, if death result to the officer in the heat 
 0. a^strug-le thus excited, the killing will not be m.urder in the 
 tirso degree. As bearing upo:. the several points here suggested, 
 see Rex, v Ricket_^s, 3 Camp. 63; Tiner v. State. 44 Tex. 126; Bellnv^ 
 V . Snanno n . 2 :iill, 36; Haffert y-TTTecTTi,— Tin . ) 18 An. Rer . 60^: 
 Jones V. ^a^, iTex. AppTr^~3V~C Rep. SCT, B ;^.m. St. Rer. 454; ' 
 T^^ l- ?/"/.?^ ^y- ^23 (2 S. ;7. Rer. 9C4') ; Sta rry. U. ^S.. 
 
 8§ Gs nR^Mi ^^ l^^^i '^^•.^11- ^^^' ^^ ^- -^' e^); C-rocm-^ State. 
 
 'Sphnn' - I ' .?; E. Rep. 1035, 21 Am. St. ReT> . 179); State v : 
 
 ^ah^ o Har 566; '^'h^art on. Criminal Law; Golden v. StaF?.-l~sT C. 
 Mkfr^^SflH^rg:^' '' '^' ''' '^ ^^' ".V— e^:^69Tr5rennan_v, 
 
 -eneral^in^'L^o'^r ^^'^tructed the jury quite clearlv uPon the 
 .eneral principle here discussed, but in making reference to the c- - 
 
 5263
 
 (^4 
 The Warrant 
 
 on trial said to the jurj^ that i "^ the officer, ui.on reasonable m- 
 forration and telief of the defendant's guilt, -sunr^oned a posse 
 of^ltizens and with ther, armed with guns and re^^olvers, y/ent 
 ?o ?he dSot wSere the defendants were at t>ie tirne and -v^t n and 
 in the vresence of the posse called uron the defendants to throw 
 up their hands, and informed them that he wanted tnem. '^-^-^^^/J^ 
 resistance was unlawful, and if. in making such defense. Sundblad 
 was killed, then defendants were guilty as charged. ' lO nake sue-, 
 rule applicable theijury sho-uld have ceen charged t>-ey inust also 
 find that defendant !5 knew, or as reasonable ;aen ougnt to na/e knovr... 
 that their arrest was sought bv lawful authority, and ^nat i,neir 
 personal ^afetv was not being imperiled at tne hands oftne forest- 
 ing forc^. The' defendants were, so far as appears, entire strangers 
 in the ^ighborhood; there is no evidtmce tha-^ they knev/ the ol.i- 
 cial character of Lodine; the demand made upon them did not neces- 
 sarily mean a summons to submit to lawful arrest; tne aemcnstra- 
 tion of force against them was such as would amount to an assault 
 if made without proper authority; and it should have teen left to 
 the jury to say whether defendants were sufficiently apprised of 
 the lawful purposes of the marshal and his party. 
 
 ether questions are raised by counsel, cut. in x-iew of the 
 conclusions already announced, it is unnecessary- to consider them. 
 The judgment of the distric l_^- court is reversed, and the cause re- 
 manded for 8 new trial_j^ P.ev ers ed . 
 
 (Deemer, J., dissent ed) 
 
 Stat e ". Towne. 
 
 Supreme Court of Iowa, 1917. 18C lov/a 359. 
 
 From a conviction of m-anslaught er the defendant appealed. 
 
 Deeme r J. - I. The facts are not seriously in dispute, and 
 
 the arguraerS is largely directed to the sufficiency thereof to 
 sustain the verdict . 
 
 Defendant v;as a business man, engaged in handling general mer- 
 chandise in the town of Jcimaica. He lived on che same street on 
 which his store v/as located, and about five blocks due north there- 
 of, his house being the last o jie on that side cf the street, llorth 
 of his house was a public highwaj'. and north of this hiprhway v/as a 
 cornfield. At the intersection of the fii'st street south of his 
 house with the street on v/hich the house is situated, there v/as a 
 small wooden bridge, and just south cf that, a small hill rising some 
 X or 4c feet to the sidev/alk on the v/est side of tJl^street. De- 
 fendant's trother lived about midway hef.veen his (defendant's) 
 
 5263
 
 The rf7erra:it ■^•- 
 
 housp p^xd his store, and on the same Bide of the street . At about 
 a-ZC o'cioc]^ in the e^'ening of March 13, 1915, three of defendant's 
 chiidT-en a daughter, Gretchen, 19 years of age, and tv;o toys, one 
 atout 15 and the other 12 yesrs of a^e, left defendant's store ar.d 
 started fo^ their home UTi_the street which we hare .iurt described. 
 They v/e^e -followed by a stranger, v/ho is described as a ta^l man, 
 •wearing a cap with the visor dovv:o and pulled over tne ^y^s This 
 stranf^er followed the children as far north as defendant's brotnerr 
 house \vhere he followed defendant's daughter into the_jz^d_^. Defen- 
 dant followed his children from the store almost immeaiatexy, an^ 
 overtook them at the brother's house. He found his daughter and his 
 sons standing near the house, and the stranger standing 10 or 1^ 
 feet north of them. i.bcut the time the defendant arrived at tne 
 house the stranger remarked to one of the boys: "Are you just corn- 
 in^ home from school?" As the defendant passed on tne sidewalk 
 going north, the daughter went past the stranger to meet ner ff^-'^er, 
 and as she did so, this stranger leaned forward witn nis cap pulled 
 down took a step or two in advance, and made some remark to the 
 young lady, which none of the bystanders heard or understood. T-ie 
 girl°was frightened, and, with her youngest brother, r^.n p^ot her_ 
 father and on to her o'/m home. Defendant and his oldest boy walkec 
 on together toward their Tiome, and the stranger followed them un- 
 til they reached their own house. As they approached their house, 
 defendant instructed his son, who was v/ith him, to run into the 
 house and get his gun - a shotgun. The boy obeyed, brought the gun 
 out and loaded it, and handed it to his father, near the South door 
 of the house at the west end thereof. It should be remarked that 
 the streets were not lighted in any manner, and that the night was 
 dark. When defendant received the gun from his sen, the stranger 
 being in the yard of defendant's house and something like 15 feet 
 away, and approaching him,' he (defendant ) ordered the s"*" ranger not to 
 come any clos'^r, and asked him v/hat he was doing ther*. The stranre* 
 replied that "he had just gotten off the train and was walking 
 around." Ke (defendant j asked him his name, and he responded by 
 asking: "Who lives here? Ke (def enda:at ) then asked him v/hat his 
 business was, and, instead of answering, he asked another question 
 ^nd continued to walk tov.'ard the defendant. Defendant then told 
 him not to ccme any closer or he would shoot, and at the same tim^ 
 it is claimed, told him he would take 'him up tov/n and turn him. ever 
 to the marshal. Acting upon this suggestion, he ordered the strang- 
 er to go ahead of him down town. The stranger started toward towr; 
 with defendant and his eldest son following him, the defendant with 
 gun in hand. The stranger halted at times, but defendant pressed 
 him on. vVhen they got to the bridge south of defendant's house, the 
 stranger stopped, a:ad said to defendant that he did net intend to 
 hurt them. Defendant again told the stranger to move on down tov/n, 
 and the stranger proceeded on across the bridge and on to the top 
 of the little hill v/hich we have described, and there stoprsed. De- 
 fendant, v/ith his son, was :t2ien_at the bottom of the hill. As he 
 reached the top of the hill, the stranger stopped, scream.ed in a 
 loud tone, "You fellows, " and rushed back with arms extended to 
 wliere defendant and his son v/ere standing, and came within 3 or 10 
 feet of defendant, v/hc had then lei^-eled his gun upon the stranger, 
 and, as he approac' ed, defendant savs he made a motion as if to 
 
 5263
 
 The ./arrant . , 66 
 
 grab the gun, when he (defendant) fired both barrels at the strang- 
 er, fepulting in v/ounds from which the stranger died the next after- 
 noon. This stranger was soon found to be a man named William Eerry, 
 an eccentric, if not insane person, who had a brother living at 
 Jamaica until a few days prior to the shooting. Berry had lived at 
 Perry until a few months prior to his death, and, after leaving 
 Perry, lived at Wa^lcee, where he was working for his board. He was 
 discharged by the people for whom he had been v/orking, because of 
 his peculiarities and eccentricities, and taken by them to the depot 
 in Afaukee on the day he was killed. Before he died, he told defen- 
 dant that he (defendant) v/as in no way to blame; that he forgave 
 him; and that, if he had not followed defendant's daughter, he would 
 not have been hurt . 
 
 The court submitted the case to the jury to determine whether 
 or not defendant was acting in self-defense, and instructed that 
 the defendant was not justified in using a deadly weapon simply to 
 effectuate an arrest of the stranger fo r vi olat ion of some tcwn 
 ordinance or for a misdemeanor, whilst thes^ instructions are com- 
 plained of, they seem tc announce correct rules of law, and, on the 
 vi/hole record, the case was properly submitted to the jury for it 
 to determine whether or not defendant's act v;as in lawful deferjse 
 Gf his person. . ___ 
 
 The follov/ing instructions ar*^ challenged: 
 
 "If you find from the evidence in this case that said William 
 Berry was at the time in any manner disturbing the peace and quiet 
 of the defendant, o r jiis f amily, within the town of Jamaica, then 
 he was guilty of a violation of the provisions of said ordinance, 
 and, if said offense was committed or being committed in the pres- 
 ence of the defendant, then the defendant had the right under the 
 law to arrest or cause the arr fest of the said William Perry, and 
 to turn him over to a peace officer of said town of Jamaica. You 
 are instructed, however, that in making such arrest, if he did make 
 such arrest, or attempt to make such arrest, it v/as the duty of the 
 defendant to in some manner give said William Eerry to understand 
 that he was so placed under arrest, and that said William Berry 
 should subm.it to such arrest, and that it was the intention of the 
 defendant to turn said William Eeri'y over to a peace officer of 
 the tO'/m of Jamaica. In making s^fih arrest, the defendant had no 
 right to use any other means or any greater force than v/as reason- 
 ably necessary to accomplish that purpose, and, in his efforts to 
 make such arrest or to turn said ,/illiam Eerry over to a peace 
 officer of the to^vn of Jamaica, in accomplishing that end alone, he 
 had no right to make use of a deadly v/eapon iiL_a deadly manner to 
 accomplish such purpose; and so the defemtsno cannot justify the 
 taking of the life of said William Berry merely on the grounds that 
 he, as a private citizen, had the right' to arrest said William Berry, 
 
 5263
 
 T-'^e Warrant 
 
 67 
 
 ^•id v/as in the act of taking said William per^y to 3 re-ce officer 
 of thp town of Jamaica for the r.urpose of turning him over to such 
 -^eace officer, and thij; feature of th^ cose is -ubnitted to you on^y 
 >or the pu->^rose of your determination of the fact aa to v/het.ier, 
 u^der f'll of the circuir^stances disclosed hy the proof, tne defen- 
 dant was at the t ime justJXieLJjLieing armed -/ith a deadly weapon, 
 a'^d in usinr sane~Th a deadly manner. And EO, in the determination 
 of thiP case, vou will bear in mind thrt, so far as the nerej^ring 
 o' an arrest by the^d-efendant as a -orirate citizen, of s^id .r.iiia'- 
 Be-^rv ari^Tnatt empt ing to deliver him to s neace officer of the 
 tovm''of Jarr>eica, Iowa, howe'/er said William Eer^-y r\i:^7 have resisted 
 such an arrest, if it v/ent no further thp.n mere resistance to such 
 arrest or attemt)t to flee from said defendant to avoid an arrect, 
 the defendant would not bj3_justrif ied in u^^in.? a deadly weapon in 
 a deadly manner; nor wculdiie be justified in so using such^dec.dly 
 weapon in a deadly mann.er_-anl ess in doing so he was t-cting in neces- 
 sary seif-defenjse, as his right in reletion thereto is r.xre fully 
 explained to you in subseqvieiit instructions." 
 
 These announce correct, well-established r^jl as of law, and no 
 authorities need be cited in their support. 
 
 if firmed. 
 
 (3vans, J., dissented). 
 
 St at e V . Smal 1 . 
 
 Supreme Court of Iowa, 1918.- Iowa, - 168 IT. 
 
 Ladd, J. The defendant is ch 
 by a policeman "i/ithout a 
 
 'ged with having 
 .varrant . His offense is 
 
 'esi?ted arrest 
 id to be 
 
 "using of loud, boisterous, obscen-a and abusive language in a public 
 r^lace and disturbing the peace and ouiet of the community and acting 
 in a riotous, indecent and unlawful manner." 
 
 The policeman testified, in subst?-:-ice, tliat defend 
 one Snyder's pool hall and asked for pon, saying that " 
 put into som.e more alcohol" and, aprlyin^; an epitliet to 
 added that he could not take that away from him; that t 
 responded that no one had said anyth ing about doing so; 
 then iiSked defendant to leave and iie refused, v/hereunon 
 advised him to go home as he did net care about arrest i 
 defendant answered that he would not do it, that there 
 enough policemen in town to arrest him, upon -./hich the 
 aim he was under arrest and took hold of him; that a s 
 sued in which defendant struck the witness and got hi 
 
 5263 
 
 ant entered 
 ti'-is was to 
 the officer, 
 he witness 
 t:iat Snyder 
 the witness 
 ng him, and 
 \/ere nou 
 v.'itness told 
 cuffle en- 
 by the neck
 
 Tlie Vvsrrant 63 
 
 and toth fell; that defendant tcon said if he v.ere allcv/ed to get 
 up he would go with hirr. like a man, out upon arising struck at the 
 witness and v/ent out the door, threatening the v/itness if he 
 followed him and v/ent tc his home. "i^. .Vhat caused you to arrest 
 him? A. He Veger. tc ahune me and did net pay any attention tc the 
 houseman, L:r,""Snyder . D:d not leave when told, and Snjrder raid, 
 'You v/i.M ha^-e to do soriething v/ith hir..'" 
 
 , and he did go home, and the officer came down to his house; 
 
 that the officer said nothing about arresting him; that he had not 
 teen drinking, had no alcohol there; that he was in the hall not tc 
 exceed two iTiinutes, and went straight hone and said nothing after 
 he left the hall. 
 
 (1) From this e-v-i^ence the jury might have found the contrcv- 
 ersi' to have teen sol el;- ter\.-eenthe officer and defendant, that 
 the defendant v/as innocent cf v/rongdc ing, and that no public offence 
 was coninitted in the presence cf the officer. An officer may make 
 
 an arrest v/ithcut '; v/ar-^ant : "(l; gor^jL_Sj j^^ ^"^ °"'-^^^^^" ^^^^"'^"'^x ^^ 
 r a t t empt ed in "-:•'. s -c r es en c e. ( 2 ] v/Ser^~a putiic ciienRe has"^ in 
 faC^ t een com:" it t ed, and he nss reasonable' ground for believing that 
 the perpcn to be arrested has co.mr;iitted it." Section 5196, Code. 
 An offense, then, must have been Admitted in the -cresence of the 
 policeman in order to have juptified hini in making the arrest. It 
 IS not enough that he -ay have so thought or have had reas^nabir 
 grouna so to believe; tne offense must actuall" have been atter^-^e^^ 
 or comm:..oed in nis prs3ence to have .-astified the arrest. S ^^d'e'V t^' 
 T^cnrson.^ lo4 Jowa. 725.112 II. W. 239; Stearns v. Titus. 195^:1.7. 
 ,','-. "■■ ' -• -^^ ' • ^se no-e to Frir>e v. TP'h'^n 34 t -d a f-yr c^ \ 
 1182, in which the cases ar- collected. ^" ^ ' 
 
 ^t^i-JVj^r"-'^'^'-^ ^"''^' ^^less the conditions -ecited in the 
 statute eT^''st t ^e' Piy^e^c^-i- i <-. ,,v^t ^,..^,.^ _j^i ^.^^ ^ ^.1. ^.1.^ 
 
 re-^-s- v"-^^^'.r.-o'-^;r^ " ^ un_c.v^u^ and the p?rty arrested may 
 aI":: "- ^y-^- '^^^^ ^- appears to him, acting as OT^d^na-^l-.- ^--u- 
 
 flSe^'o.'^v^'c^M^e^'^ij r^^?^"^^-..^^^ ^^" !ealous?3^"gu;ids"S; 
 ^i vl^" - '^r, c_^i^en, ana a putlic officer has no -r-irht bPf»Pn^P 
 
 ?o V?^^"'^ station, ne should be found -uilt". Th^'s entirely over- 
 looked the inquiry as to v/hether the defendant was'^n^^ged i< ?he 
 commission of any offense at the time of the errSst an^ in 4i^ 
 respect was erroneous. In the instructions fJuo^n/^he Jui^^'Jas 
 
 5253 ^ o ^ ■
 
 The ifer^a.:t 69 
 
 tolH that defendant ov/ed the duty tc sut.-r.it to the officer, if he 
 knev.' o-f his officio! chrrscter "/o.^.n informed that he v/as arrested. 
 He owed no such duty unless r.t the tine he v/&s engcged in the com- 
 mission of £ pu'i-lic offense. 
 
 Judgment is reversed, and cause remanded* 
 
 Section •* . 
 The Arvest . 
 
 "Arrest is the taking of a person into custody wir.&r. and in 
 the manner authorised "by lav/, and" may be made at any time of any dcy 
 or Tii^ht .'• (519 3) 
 
 Hbbts V. Illinois Central R. Co. 
 
 Supreme Court of Icv.'S, 1917. 182 lo'.va 316. 
 
 per Curiam . •*... 
 
 It 13 Strenuously argued that there was no evidence of any 
 arrest save the one aft er t he info rmrt ion v/as filed, and that this 
 was made under a t> ro t) er wa j r a,nt , and "by the chief of police. An 
 arrest is defined by our Code as: 
 
 "An arrest is made by an actual restraint of the person tc 
 be ar-^ested, or by his submission to the custody of the person mak- 
 ing the arrest. " ITo unnecessary force or violence shall be used in 
 making the ssme, .and the person arrested shall not be subjected tc 
 any greater restraint than is necessary for his .det ent ion." 
 Code Section 5194. 
 
 There need not be an application of actual force, or such 
 physical restraint as is visible to the naked eye. McA leer v . 
 Good, (la.) IC. L. R. A. (:T. 3.) iOo. 
 
 ^ St ockton, J. - Fi rst"! As to the demurrer to the Indictment, 
 
 not necessary, in charging the defendant vath kiicwingly and 
 
 he act.- under the authority of a v;arrant, and if required, must t)ro- 
 duce and show it. Code, section 2339. ' But it yq r iot necessarj' tha.t 
 the indictment, should set forth, at length, the acts of the office- 
 
 5265
 
 \
 
 The Arres"! 
 
 7C 
 
 or shcv.; that in malciiif^ the Prr£3t. ne ciomrlieQ..in allre^pecoo ^x.h 
 the re..uisites of the statute. In s eryrnry^Te-wrrfT^ v/ill be pre- 
 sumee to hsve discharged his duty; and if tne deienaant^ f.Slf kp 
 the fact that he or.^itted to declj.re the authority under vhicn he 
 
 acted, it was proper_ii£^t_er of defense. 
 
 State V. Smith. 
 
 Supreme Court of lo::e, 1905. 127 lov/a 534, 105 IT. 'AT. 944. 
 
 From a conviction of r^anslaur^ht er under an indictment for 
 murder, the defendant appfi^ ed . ^.,--- 
 
 Deemer, J. - Defendant shot and killed one William G. Sarver. 
 At the time of the homicide the defenda-it was a policeman in the 
 city of Albia, and had arrested -vithout a warrant S. D. Sarver, 
 father of ■^Tilliair. Q^, for the crKr^e of drunk enness . ./illiam G. in- 
 terfered in the matter, and as a result of the altercation received 
 a -Distol shot, from the effects 't)f which he almo^-t immediately died. 
 Defendant contended that the killing was just if iab l e on two grounds: 
 First, because in defense of his person; and, second, because it v/as 
 necessarv to '^revent a felony, and to secure an arrest of the de- 
 ceared, or to prevent his escape. 
 
 The trial court gave the folioY.lng among other instructions: 
 
 {2Z] Vifhen a peace officer, in making an arrest for a nisde- 
 m.eanor, is resisted by violence r.nd force in making such arrest, 
 then such officer has th'e right to resist force Jbv_fcrce; and when 
 the ^esi!^^tance is vi'olent and determined such officer is not bound 
 to make nice calculations as to the degree cf force necesst^ry to 
 accomplish the purpose^ but may use Guch._a reasonable degree of 
 physical force in overcoming such resistaxice and Effecting such 
 arrest as may reasonably appear necessary therefor, and to prevent 
 the escape cf the party v/hon he is arresting; but he has no right 
 to take the life of such pers on, or inflict on him s. great bodily 
 harm, for the purpose of m.aking ruch arrest, except when the officer 
 has a reasonable apprehensi on of peril to hi s own life cr cf suffer- 
 ing great bodil;- harm. ' ' 
 
 ?.nd 
 
 (24) If you find that the defendant had arrested S. D, Sarve 
 'N, G. Barver, with knov/ledfre thereof, apT5eared, and undertook 
 
 by viclenco u"oon the defendant to effect the releasee of S. L. Sarver 
 from, such arrest, then it v/as the defendant 's duty to arrest him., and 
 his duty to submit th.ereto; c\nd if the said J/. G, Sarver by violence 
 upon or against the defendant resisted such arrest, and attempted 
 to escape therefrom, then the defeadant hed the right to resist by 
 force, and was not bound to make nice calculations as to the. degree 
 of force necessarv to accom-olish the arrest, cut he hpd the right 
 
 5263
 
 The Arrest 'J- 
 
 tc UBP such a reasonable degree cf T)iiysical force in overcoming 
 such -^esista^.ce and effecting: such arrest and preventing an escape 
 .-^s ap--eared reasonatl^ necessary therefor; but he had no right tc 
 ••■ake *he l-:+"e of said 3prver, or inflict upon hin a great bodily 
 ^niury 'simply to effect the arrest, unless he had reasonable appre- 
 hension to peril tc hi's own life, or of suffering great bodily 
 ha. m . 
 
 The defendant asked the folio wing, which v/ere refused, to-wit; 
 
 (1) If you find that 3. D. Sarver and rfid Sarvcr were in a 
 condition of intoxication, and were therefor placed under arrest cy 
 the de+-endant. then you are instructed that it was their duty to 
 submit to such arrest, and they had no rigiit, by violence or other- 
 wise, tc resist such arrest; and if they attempted to escape from 
 the arrest it was defendant's duty tc resist and prevent the escape. 
 And if vou find that they did, by violence upon the defendant or 
 otherwise, endeavor to escane from such arrest, then it v/as the 
 dutv o-f' the defendant to do his utmost to prevent such escape, and 
 in preventing it he had the right to use all the force and violence 
 that, under all the circumstances and conditions then surrounding 
 him at the time, seemed to him "in good faith, as an ordinarily 
 reasonable man, necessary tc prevent such att em.pt ed escape, even to 
 the use of a deadly weapon, if it so seemed to him necessary to 
 use it. 
 
 (3) If you find that the defendant had arrested 8. D. Sarver, 
 and that Wid Sarver, the deceased, appeared, and undertook bv violence: 
 upon the defendarit to effect the release of 3. T. Sarver from such 
 arrest, then it was defendaiit 's dutv to also arrest the said \Vid 
 Sartre]", and it was said Server's dutv to submit to such arrest; and 
 if the said ,7id Sarvei', by violence upon or against the defendant, 
 resisted such arrest, and attempted to escape therefrom, the defen- 
 dant had the right tc use all the force end violence that to him, 
 in gcod faith as an ordinarily reasonable nan under all the sur- 
 rounding circumstances and conditions seemed to him necessar;.'" to 
 prevent the escape. 
 
 Cf the instruct iona given and of the refusal to give those 
 asked defendant complains". Takinj up the ones given in the order 
 ciuot ed, we are of opinion that the first v/as correct, v/hile the 
 authorities are not in lU'.rmony upon the preposition involved, the 
 better r^ole seems to be that an officer is not just ified in killj .ng 
 a mere misdemeanant in order t o fe ff ett aat g _JJ. • ^ -a^ rgfT; or'tc pre- 
 venT~' g;s^ escape a ft er arx £St . "itl such cashes it is better, and mere 
 in TlTfTsoTiance v/ith m.odern not ions regarding the sanctity of human 
 life, that the offender escape than that hi? life be taken, in a 
 case where the extreme penalty would be a trifling fine or a few 
 davs ' im.rrisonment in jail. Ren eau v . Stat e, 2 Lea, '^ac (31 Am, 
 ReVi . 626 ) ; Ski dmo re v _^ State, "5" T exTAnp. 2C ; U . S. v . _C1 ark_ ( C. C . ) 
 31 Fed., 710 ; 'Hea J -- 7 Mart i n, 65 I-f^^ . 48C (3 3. ^i~'522TT omitH v. Stat 
 59 Ark. 132 ('26 S. W. 712, 3.c.4o Am. St. Retj. 20 ) ; Stafe~v. Moore, 
 
 5263
 
 The Arrest 72 
 
 5? Conn. 2-^4; Bilger_T_.__CcK:_^ , SS Ky . 55C (11 S. V/. 651). To this 
 rule t^ere are scne'efccepticns, as in ctses cf riot, mcc violence, 
 etc. ITone of the exceptions anply to this case, however. The 
 general rule does not, according to the great weight of authority, 
 apply to felonies. Here -an officer may OT^rcae force, to force, and, 
 if there be no othe:^ re&sonehlc a-ofsrent method for effecting the 
 arrest or preventing: the esc?-ne of the felon, the officer mav, if 
 he has performed his duties in other respects, tfke the life of 
 the offender. This rule net onlv a-oplies tc the felon_hira£.e]X. t^* 
 
 76 GaT g"73; "State v . Inland, 97 i; . C. 438 ( 2 S. ii. ^TecT;'. "Even in 
 such cases the officer is not the arbitrary judge as to whether the 
 necessity exists for taking life. That ^iuestioa is ultimately for 
 the jury under proper instructions. Stat c v . j^l und, ^upra. But it if. 
 erroneous in such cases for a court tTc "liisfruct as a matter of law 
 that an officer is not justified in taking the life of a lelon. 
 1 East, P. G. 296. The authorities on this subject are collated in 
 an excellent note found in Hawkins v._ Commonwea lth, 61 ^ra. Dec, 
 pages 151-164. The reasons for"t~Hese rules are "apparent . An officer, 
 in the per:fcrmance cf his duty as suci^i, stands on an entirely dif- 
 ferent footirig from an individual. He is a minister of justice, and 
 entitled tc the peculier protection of the law. Without submission 
 to his authority there is no security, and anarchy reigns su-Drerce. 
 He muft, of necessit;/, be the aggressor, rnd the lav/ affords him 
 special -nrotection. In his capacity as an indivldurl he may take 
 advantage of the "first lev: of npture, " and defend himself against 
 assault; as an officer he has an affirmative duty to perform, and 
 in the performance thereof he should so long as he keeps within 
 due bounds, be protected- Sent imentalisn should not go so far as to 
 obstruct the due administrst ■'on cf la.v. end brute force should not 
 be permitted to obstruct the wheels cf' justice, 
 
 ITow, in the rrecent case there wss evidence tending to show 
 that efzer the defendant he d placed 3. f. Sarve-^ under a:>'rest 
 for drunkenness, and v/a^; endeavoring to take him to jail, he (Sarver) 
 wss attempting to esca-^e from such arrest, and thct //. G. Sarver 
 made an assault ur^on the officer for the purr^ose of aic'.ing his 
 father xo escape; that the defendant then attempted to arrest. ■//, 
 G. Srrver, v.-ho resitted the same, and continued his assault upon 
 the policeman; and that finally defendant shot ^. G. Sarver, in- 
 flicting wounds frcm which^,^ (Sarver) died. To meet this feature 
 of the case the trial 
 
 , end- 
 
 he (ServerJ was resisting and assavItTng the officer, not only to 
 effectuate his o «n escape, but alsc to secure the release of his 
 fe*her, S. D. Sar^-er. Section 4896 of the Code -orcvides that: 
 "Eve-y person v;hc aids or assTsts an;' prisoner in escaping or 
 attempting tc escape, from, the custcTiy'of any sheriff, ' deputy 
 sheriff, marshal, constable, or otr^^ gfficer, or nerson who has t]
 
 The Arxest '3 
 
 la-wful charge, v/lth or without a warrant, of such prisoner, upon 
 any criminal charge, shall be fined not exceeding one thousand 
 dollars, and imprisoned in the penitentiary not exceeding fire 
 years.'* The penalty provided for the prohibited acts makes the 
 crirnea felony, and the law as to the duties, obligations, pov/ers, 
 and "rTg^TT^^f an officer in making arrests and preventing escapes 
 of those engaged in the coTronission of a felony clearly applies. 
 State V. Turlington, 102 Mo. 642 (15 S. W. 141). 
 
 The third instruction asked by the defendant, or something 
 like it, should have been given. The killing must, of course, be 
 apparentlj/ necess ary, for one is net justified in taking human 
 lif^-i-r there be any other effective way of effecting the arrest; 
 but this is a .luesticn of fact for a jury, and not of lav/ for the 
 court. The Attorney-General contends that there is no evidence 
 in the case v/hlch called for an instruction on this subject. The 
 trial court thought differently, and submitted the natter to a 
 jury under an erroneous instruction. Such being the record, pre- 
 judice will be presumed, and the case must be reversed, unless it 
 affirmatively appears that the error was without prejudice. The 
 def eridant 's testimony - v/hich we shall not set out at this time - 
 was such as to call for a proper instruction on the subject, for 
 it tended to show that W'. G. Sarver v/as engaged in the commission 
 of a felony, to-v/it, of attempting to secure the escape of a 
 prisoner in the custody of a policeman, when the fatal shots v/ere 
 fired. If the jury believed the defendant's statements, it might 
 have found that w. G. Sarver made an assault upon the defendant, 
 a policeman, after he had lav/fully arrested S. D. Sarver, for the 
 purpose of securing the escape of S.' D. Sarver. In so doing he 
 was engaged in the commission of a felony, and defendant, as an 
 officer, had the undoubted right to use a v/eapon to prevent this 
 felony; if that were the only reasonably atjparent method of accom- 
 plishing the result. Sta te v, Moore. 31 Conn. 479 (83 Am Dec. 
 159); Ponl^^^People. ^-M i c h. 15C; R 'uloff y. Peolle 4 T/y oj^: 
 hoSer must^iJ* -J^ ?i^-u^^^' ^- ^^ ^^^ng upder suc h circumstances, 
 ventTnJthe fP^Jn-^ '^ ^^S ^^^^^g^ and non-n.e gligent tpurpoge of pre- 
 SfmSl ll9-(ir<T. TM],''"" "'''' otheVre^i^Hr p^e v. Lrt. 
 
 instruction'''^nrfT« ^^^ '" r"""^ in giving its twenty- fourth 
 instruction, «nd the judgment must therefore be reversed . 
 
 Commercial Exchange £ank v. Mcleod. 
 Supreme Court of Iowa, 1S85. 65 Iowa 665, 19 N. ^, 329. 
 
 tained the plaintiff appSlST^ * °'°^''''' ^""^"^ ^^^" ^^^- 
 
 526 3
 
 The /»rreflt '^ 
 
 Rothrock. Ch . J .- Cn the thirty-first day of January, 
 
 1883 the plaintiff commenced an action against the defendant and 
 others upon a promissorv note. It v/as alleged in the pet it ion that 
 defendants had disTDOsed of their property in part with intent to 
 defraud their creditors, and a writ of attachment was prayed for 
 and issued, vjiiich v/as placed in the hands of the sheriff for ser- 
 vice. The plaintiff is a partnership, and H. P. Kirk and I- J- 
 Ja-r-k are the individual members thereof. On the twenty-eighth day 
 of August, 1383, said I, R. Kirk made and filed an information 
 before a justice of the peace, charging the defendant witntne 
 crime of uttering a forged promissory note. A warrant was issued, 
 and the plaintiff v/as arrested by a donstable and taken to the 
 county jail. Ut)on his commitment tc the jail, the sheriff, v/ho 
 v/as the keeper thereof, proceeded to search the defendant 's person, 
 and took therefrom one gold watch, one silver watch, and $48C in 
 money, and, having the attachment and money and property all in 
 his hands, he made return that he had levied the attachment on the 
 wat c 'ii es and mo n ey . 
 
 Section 4212 of the Code provides: "He who makes an arrest may 
 take from the person all offensive v/eapons which he may have about 
 his person, and must deliver them to the magistrate before whom he 
 is taken, to be disposed of according to law." We do not think 
 that an officer making an arrest is precluded by this statute from 
 taking from the person of the prisoner any other property than 
 "offensive v/eapons". An officer making an arrest, or a jailor upon 
 committing a person to jail, may search him and take from him all 
 propert3'- v/hich might be used by the prisoner in affecting an escape. 
 In Reifsnyder v. Lee; 44 Iowa, ICl, the defendant stole five head 
 of cattle, and sold them to the plaintiff for $162.30. The owner 
 of the cattle claimed and recovered them from plaintiff, and the 
 plaintiff procured officers to pursue and capture the thief. The 
 officers making the arrest searched his person, and took therefrom 
 certain money, and a watch which was of little value. It was held 
 that the money and watch were liable to garnishment in the hands of 
 an officer at the suit of plaintiff. In that case the search of the 
 person v;as fully approved. It is said, however, in the opinion, that 
 "a party to a suit can gain nothing by fraud or violence under the 
 pretense of process, nor v/ill the fraudulent or unlav/ful use of 
 process be sanctio^ned by the courts. In such cases parties will be 
 restored to the rights and position they possessed and occupied be- 
 fore they were deprived thereof by the fraud, viol ence or abuse of 
 legal process." To the same effect, see Pomroy v, Parmlee, 9 Iowa, 
 140, and Patterson v. Pratt, 19 Id., 358. 
 
 #e think the sheriff was justified in making the search, and 
 in taking from the person all money or proT»erty v/hich was in any 
 way connecte d with the crime charged, or which might serve to iden- 
 ViiXjfer?^^^^ ner: nr-h^rTTF^err^the she>nr&?-kn€vf~lYiat the "witches 
 and money were in no manner connected with the crime, and that they 
 
 526 3
 
 The Arrest 75 
 
 could not be used in any way ae evidence in the prosecution, we 
 think it was his duty to return then to the defendant. If a con- 
 stable or other officer takes p5>Rsession of property found on a 
 prisoner, the court wi] 1 order the same to be restored, if not re- 
 quired as a means of proof at the trial, or which does not finally 
 appear tc be the fruits of the crime v/ith which he stands charged. 
 I'Archib. Crirn. PI. and Pr., 34, 35. 
 
 In the case of Heifsnyder v. Lee, supra, it is said, there 
 was "ample ground to hold tnat tns money taken from Lee was the 
 money which he had procured from plaintiff for the stolen cattle," 
 
 In the case at bar, it is not claimed that the sheriff had 
 any right to retain the money and watches for any punpose connec- 
 ted v/ith the arrest or with the crime charged. It is claimed, 
 however, that the defendant consented that the sheriff might take 
 possession of the saise and keep them for him. This is denied by 
 the defendant, and there v/as a conflict of evidence upon tMs_ 
 point, and it cannot be said that the court v/as not v/arranted in 
 finding that the property and money were taken without the con- 
 sent of defendant. Where a party submits to a search of his 
 person by an officer, it cannot be said that the search was with 
 his consent, because he makes no physical resistance; and, when 
 the search is completed and the fruits thereof are retained by_ 
 the officer, it would require a strong shov/ing to hold that this 
 was v/ith the consent of the prisoner. 
 
 ',Ve think that it cannot be said that the search v/as unlawfvil , 
 But v/hen it ;vas ascertained that the money and property were in 
 no way connected v/ith the offense charged, and were not held as 
 evidence of the crime charged, the personal possession of the 
 sheriff should be regarded as the personal possession of the 
 prisoner, and the money ^a^d projper ty_shculd be no_ more liable to 
 attachment than if t hey *^r5 in tTie prisoner's pockets. To hold 
 othe*rwTse would lead to unlawful and' forcible searches of the 
 reason under cover of criininal__proces3, as an aid to civil actions 
 for the collect ion'of debt~s"i It~~do"es not appear that such was 
 the purpose of the prosecution in this case, but the court was 
 
 1 from 
 :s not 
 
 ^ _. J.. -J. J --. any way connected v/ith 
 
 the crime charged, no advant.a^e^should be taken of the defendant 
 because the same was taken from his person by force and against 
 his will . ""^ 
 
 Affirmed. 
 
 5263
 
 7fi 
 
 necjtion 5. t ^ 
 
 The Preliminary Examination, and SuRirnary Tria^ of 
 
 nonindictable Offenses. 
 
 (a) The preliminar:,- Examination. 
 
 The magistrate must immediately inform the arrest ed person 
 brought before hip. of the offense with which ^h person is 
 charged and of his right_Q.L-cminsel . '^hen counsel f°^^^^f^^^^f " . 
 dant appears, or v/hen sufficient time for that purpose elapses the 
 magistrate proceeds with the preliminary fxaminat ion. unless tnis 
 is waived by the defendant (5216 and see 5239). or a -change of 
 venue-' is demandednB2r7r or proper cause for adjournment is shov/n 
 (5218 and 5219). At this stage of the proceedings the defendant can 
 obtain a "change of venue", meaning here the right to have tne pre- 
 liminarv examination conducted by some other magistrate, by merely 
 filling" the proper affidavit (5217). The purpose of the prelim- 
 inary examination ic not to establish the guilt of the defendant, 
 but merelv to d et ermi ne v/hethe^Jb here^. js^siiiXi c i en^_grg,und_to_bina 
 Mm_oxeF±GlT5iIgxand_Jury ; hence if his arrest was preceded by 
 the indictment no pr.eliminarv examination is required. Sufficient 
 ground to bind the defendant over to the grand jury is found if 
 "it appears from the examinat ien that a public offense, triable on 
 indictment, has been committed, and there is sufficient reason for 
 believing the defendant guilty thereof " (5230). 
 
 Cowell V. Patterson. 
 
 Supreme Court of Jov/a, 1878. 49 lov/a. 514. 
 
 From a judgment in habeas corpus proceedings, that the plain- 
 tiff was not impr oj)er ly restrained by the defendants, the plaintiff 
 appealed, '•^ -^ 
 
 Adams, J . - It *iV undoubt edly the right- of a person brought 
 before a magistrate for preliminary examination to v/aive the exam- 
 ination. It follov/s that in such case no examination should be 
 held. The defendant must be considered as admitting, for the pur- 
 pose of dispensing v/ith the examination, and for no .other, that 
 the testimony, if taken, would be sufficient to justify the magis- 
 trate in holding him. The petitioner claims the right in this pro* 
 ceeding to raise the question of the sufficiency of the evidence to 
 justify his being held.^ He relies upon section 3482 of the code,. 
 That section provides~that, in a proceeding upon habeas corpus, 
 the petitioner may deny the sufficiency of the testimony to justify- 
 the actio?i of t h^_commit t ing ma gj_st rat e, and that, upon the trial, 
 the testimony taken Fefbre the magistrate may be given in evidence 
 in connection with any other testimony which may then be produced, 
 
 526 3
 
 f 
 
 Y\'
 
 77 
 The Preliminary .■^camiv-t ioii, and Svnmary Trial of 
 nonindictable Offsn^ea. 
 
 We infer that the Judge who acted upon the petitioner's appli- 
 cation refused to allow him to introduce testimony upon the ground 
 that he waived the preliminary exaninaticn. »/ithout stopping to 
 inquire v/hether it was properly shown to the judge that such exam- 
 ination v/as waived, we have to say that, if wa i v ed , wejt jii nk it 
 E ho ul d_ not precl jid^- t-h-e~-rTet44ri4i-rier__£rQiiL,a ^earlng upo n_fc-6st~irao ny 
 in the_jDip^Cjaedij3g_ji2on_rw^^^as_jCOjpus . It is true that sectl.on 
 3482 provides for tendering an issue as to the sufficiency of the 
 testimony to justify the action of the committing magistrate. Now, 
 if the petitioner a'drnitt ed, by his waiver, that the testimony, if 
 taken, would be suffic^^ent, it might seem that he should not after- 
 ward be heard to ^er to the contrary, But the same section pro- 
 vides that other V^riti mo ny may bet) ix> d uc ed . So the real question 
 to be tried is ar to whether the petitioner oupht to be held, in 
 view of all the tentimony t hat__may_-±ie_ pro ducked ; and it is clear 
 that the petitioner should be discharged, in view of such testimony, 
 if it appeared that he ought not to be held, even if the testimony 
 taken simply before the magistrate showed otherwise. The presump- 
 tion agsinpt him arit^ing from a waiver ought not to be stronger 
 than in r;uch^ case. //e think, therefore, that the judge erred in 
 r ef us i ng t c Hea r t ert 1 mo ny . 
 
 Rev ers ed . 
 
 State V . Wise . 
 
 SuprCL-ie Court of Iowa, 1891. 83 lov/a 596, 5C N. ii, 59. 
 
 The defendant, liaving be^ convicted of rape, moved for a new 
 trial. This motion has overruled and judgment v/as entered against 
 him. The defendant appealed. 
 
 Given, J. - I. Cn the trial the appellant objected to the 
 examination of Bertha L ill abridge and '.V. H. Cat on on behalf of 
 the state, for the reason that no minutes of the testimony of 
 either were taken by the grand jury; that they were not witnesses 
 before the grand jury; that no notice that their testimony would 
 be taken had been served; and that what purported to be minutes of 
 their testimony v/as net taken by any authorized authority, and was 
 not proper to /toe considered by the grand jlijy . The objection was 
 overriiled, .-.nd the ruling is assigned as error. 
 
 It appears f>'om the record that the defendant v/as held upon 
 preliminary examination, to the grand jury; that upon the prelim- 
 inary examination the justice called Mr, ,7. R. Harris to take the 
 testimony of the v/itnepoes; that Mr, Harris took it in shorthand, 
 and afterv/ards transcribed it in type-v/rit ing, which copy the jus- 
 tice certified, and retu-»*ned to the clerk of the court as the 
 
 52') 3
 
 The I r el ir.i if ry E>c£r:i ."".r t io n, s nd Sujrme ry T ri ? 1 of 
 
 Mc nd ? ct e'Rl e C f f ens es . 
 
 minutec of the t est irnc:r.- tefcre him in the cese. Mr. Harris v/a.s 
 not RVvorn to correctly take the teptincny, nor to the correctness 
 of the copy, fcut he te'--tifies tnct the copy is a true ?tate'~;ent 
 of the r.inutes tp.Ice:^ by hiin. Section 4293 of the Code requires 
 th?t, "when &n indictment is found, the names of all the //itnesses 
 on v;hose e-ridence it i? found rrust te indorsed thereon tefcre it is 
 pre-ented to the court, and the minutes c^ the e-ridence of such 
 witnesses must be presented with the indictment to the court." 
 Under section 4273, an indictment may be found "upon xhe r:i-:utes cf 
 the evidence i^iven by -Afitnesses befr-^e the coiTL"!itt inj; magistrate." 
 Section 4241 requires the examinirig m'.gistrate to write out, or 
 cause to be v/ritten out, the substance cf the testimony given on 
 the exar.inat ic:i by each "witness exani ned before hir.. It is not re- 
 quired that the person whom the nagistrate nc-j cause to v/rite out 
 the testimony shall be sworn, or tliat the r/iinuter se:Tt up by the 
 I'nagistrate shall be verified L.y his oath or signed by the witness- 
 es. It is the substance- of the tsstirricay that is to .. e tal:en, and 
 the magistrate, having heard the testinony, may certify txi8.t the 
 Txinutep; thereof taVen by the person called by him are a correct 
 minute of tae substance cf the t est iraoriy . The minutes oS the testi- 
 mony in thia case were taken a^^ authorized ty l£v,, and sufficiently 
 authe nt icat sd to au thorize the grand jur;/ to act upon t her;, and 
 to indors'e the nara&^-~vf these witnesses u-cc n t he indictment. There 
 was no error, therefore, in overruling the defendant's objections 
 to tne examination cf these v/itnesses. State v. Rodman, 62 lov/^ 
 456. ' 
 
 Cn another ground the judgment was -- Reversed, 
 
 {b; The Suinr.iarv Trial cf 7cnindict ?T 1 e Offenses. 
 
 ;vp the sujTii-cry tri?l cf nonindictable offense ? ha .3 rathe-^ TJ3-^f^ 
 in corrjron with the ^roiininary exaninetion than it "has v/i-^h the tria." 
 of indictable offense, it •..'ill Ve ccnsidpred at this place. 
 
 If at the pT-elininary exani nation it ar)T5ears thc.t a -p^.r-lic 
 offense has been conr.^itt ed_^which is not triable on indiotnent and 
 there is sufficient re-son for believing the defenaa:.t guiltv there- 
 of.^t-ie magistrate 3h«?.ll order an info niiat ion to be filed against the 
 d ef enda nt (5237;. I f at i. h e o ut s ct i t h.?.d a pn eu r ed t hat t he offense 
 was less than a felony, in v.hich tne lounislanient prescr^.ed by law 
 does not exceed a fine of one hundred dollars or i!nx>riscnrne.it^j;_hi::rty 
 days v5o75;, tne proper procedure would have ueen to start, not ' 
 v;itn a cciaplaint or "rrelimiicry information" (5182;, bat with an 
 
 526 3
 
 79 
 The Prelimin&ry Examinst ion, and Suromsry Trial of 
 ITo n i nd i ct abl e Of Tens ec 
 
 information, y ut s c r it ed and sv.orn to, and filed with a justice of 
 the peace (5576). lut the oiily difference in fact would be that 
 the comTleint would ch;Tge &n indictable offense while the infor- 
 mation would not, becaut^e it is provided that the complaint myy be 
 • substan^ -iallv in the form required in criminal acticns triable be- 
 fore a justice of the pesce (5132. 7cr the rem see 5578). Thin 
 information when filed -.vculd justify the issuance of a warrant for 
 the arrest of the defc-'ndfint , directed ir the same manner as a 
 warrant of arre-^-t upon a "p-^eliminery inforjr'-t ion", v/hich warrent 
 may be served in lihe manner (55SC). The^e would be no difference 
 in the arrest of the defendant, but when brought before the justic- 
 of tlio peace, if an information hpd been filed a/rai-ist hi:.i before 
 that magistrate, ''the c'narge against him mui-t be di.^tinctly read 
 to him, and he shaM be asJced whether he is presented by his right 
 name, and be required to plead" (5582), which he may do "the same 
 as upon on indictment, orally or in v;riting" (5583). Pefore any 
 tes^:imony is lieard the defendant j.iay secure a cha:"ige of the place 
 of trial by filling an affidavit therefor (5585 and 5586)and he nuy 
 demand a jur;^*- (55GV/ which will consist of six jurors (5596). If 
 "the deferdant is acquitted, either by the justice or by a jury, 
 he must be ir.-imediat eiy disc:ic.rged" (5305j; and if he is convicted 
 he must be infcrmed of his right to appeej. to the district court 
 (5612). li'rcm the judT,i.:ent in the distract court there is the fur- 
 ther right to appeal "to the supreme court in the Sime manner as 
 froEi a judgment in a prosecution by indictment" (562G). A failure 
 of the justice of the peace tc notify thr defendant of his right 
 tc appepl do '^s not deprive him of thiA. right nor render the judg- 
 ment' void, Jacoby v. W^iddell, 1885, ol Iowa 247, 16 ^T. Ji. 119. 
 
 Zrlle ~ . Mc^Tenrv 
 
 Supreme Court of Tcv.a, 1879. 51 To.va 572, 2 N. rt. 364. 
 
 Tilt' plaintiff was arrested and trtl<en I efore the Police Court 
 upon an information chiirging him -.vith the violp.ticn of a city 
 ordinance. He first demanded a trial by jurv- and later moved for 
 a chj3.nge of venue b( ^th o f which were refused. Havinf been convic- 
 ted and comni-^ted to jail fo->* n failure to pj."" his fine he obtain- 
 ed his discharge under a v/rit of habeas corpus. The defendants in 
 that proceeding appraled. 
 
 Rothroc>2, ±' ~ !• There ore three questions presented in this 
 
 record." T"Hey are - First, v/as the plaintiff entitled to a jurj- 
 
 trial? Second, war: he eiititled tc a cliango of venue? and, third, 
 
 if the court erroneously denied either of these all e^^ed rights, vvos 
 
 its judgment void, an;i w.'o the pltintifi rroiseriy released upn 
 habeas co rpus? 
 
 526 5
 
 'f
 
 SC; 
 The PrclirjLi lary Exaiiiinat ion, and GuniTiary Trial of 
 ric ni nd i ct ab 1 e C f f ens es 
 
 viTe will dttenrine these questions in the order i:^. v/hich they 
 are :;ti'ted. The Const it uticn of this State, in itn first article, 
 ccntalnp these provisions: 
 
 "Sec. IC . In all criminal pro sec ut ions, and i i cases invoivinr: 
 the life or liberty of an indi-"-.ldual, the accused shfQi have a 
 right to a f?peedy and public tria] bv an impartial jury; to be in- 
 
 tance of counsel. 
 
 "Sec. 11. Ail offenses loss than felony, and in which the 
 ■punishment does not exceed a fine of one hund-r-ed dollarn, or im- 
 priscnment ■f'cr thirty days, fjhall be tried ^umTiaril.y before a jus- 
 tice o-f the peace, or o^jher _off i.cei^ authori ie;T~t7y~rav/, on infor- 
 mation under oath, witlTcut'''fndfctrnent, or the intervention of a 
 gra-nd jury, saving to the defendant the right of appeal; and no 
 person shall be held to annv/er for any higher criminal offense, un- 
 less on preoentment or indictment by a grand jury, except in cases 
 arising in the army ov navy, or in the militia, v/hen in cictual 
 service, in time of v/ar or public danger." 
 
 Municipal corporations have power to make and publish ordin- 
 ances, and to enforce obedience tnereto i^y fine not exceeding one 
 hundred dcllars, cr by imprisonment not exceeding thirty days. 
 That a violation of an ordinance', of this character ie an off-Biise 
 lesr than felony v/e think mupt be conceded. True, it is not an 
 offense againft an act of the Legislature, but it is a violation 
 of a valid enactment made in pursuance of lav/, and the punishr.ient 
 is in*"licted "cy authx)rity c^ the L3gi.slature. These constitution?^! 
 provisicn^; crnnot be evaded by imposing fines and imprisonment upon 
 the citisen through ?:-. intervening agency, such as a mimicipal cor- 
 poration. But oho plaintiff was not entitled tc a trial bv Jury 
 by virtue of the provisions of the Constitution, because article 1, 
 9 11 pro-ider- that all offenses in which the puni.ihrient does not 
 exceed one hundred dollrrg, or thirty days Impriscnmrnt. shall be 
 tried summarily before a justice of the t>eace or other officer au- 
 thorised bv l-?v:; saving the defendait the right of af peal , Ey 
 sa-"-ing the right of arspeal tc a court where the defendant may de- 
 mand thai he be tried by a jury, the provision ir consist'-nt" v;ith 
 article 9 of the ^;.ill c f p.lg}ito, which declare? that the ri-'n-, of 
 
 lie c^rr next tc inquire v/hether ^.he pl:;intiff wao entitled to 
 a trial by juiy, by virtue of a^iy sta-.ute law. The ar.'uraent that 
 there IS statutory auf^ority for a trial by jui^ in a police court. 
 for the vioaai:ion o<--:i city crdinan.-;^. U; based upon inference and 
 not upon any express statute ry enachiient . 
 
 5263
 
 81 
 The Preliminary Exarninat ion, and Sunmjry Trial of 
 No ni nd i ct abl e C f f ens ^s . 
 
 The city of Des Moines is a city of the first class, and by 
 section 535 of the Code there is established in such ci'Lies a 
 Police Court, ly section 545 it is provided that "the police judge 
 shall have, in all criminal cases, the pov/ers and jurisdiction vest- 
 ed in the justice of the peace, and shall have juris- 
 diction of all violations of the ordinances of the city." By 
 section 543 it is pro--1ded tliat the cit}'- council shall provide by 
 ordinance for the selection, summoning and iint>anelin? of juries for 
 the Police Court. It is provided by section 4672 that in a trial 
 of a criminal case before a justice of the peace the defendant may 
 deraand a trial b;,'- jury. i!lo such provision is anywhere contained in 
 the statute reguiating proceedings in the Police Court. It dees not 
 follow, because a jui^' is provided for the Police Court, that a 
 trial by jury may be demanded for the violation of a citj' ordinance. 
 The jurv must be hold to have been intended for the trial of cases 
 in the Police Court v/hcn authorised by lav/; that is, v/heri the court 
 is exercising the powers and jurisdictions of a justice of the pec.ce 
 in criminal cases. This jurisdiction embraces offenses against the 
 laws of the ntcte, in w-^ich a party is entitled to a trial by a jury 
 of six men, as provided in section 4677 or' the Code. Exercising the 
 powers and jurisdiction of a justice of the peace in criminal cases 
 does not include im.paneling juries for the trial, of violotions of 
 the ordinances of the city. 
 
 An ordinance cf the city provided that any person havin:; been 
 brought before the Police Ccurt, upon information or otherwise, 
 shaxl j-i.-ive the rif]:ht to dem-'Uid a jury. It is scarcely necessary 
 tc say that the ordinance could confer no right not authorized 
 by statiAte. In other words, if the statute confers jurisdiction 
 upon the police Court for the trial of offenses against the ordi- 
 nance of the city, and does not provide for a trial by jury, the 
 city could not by ordinance confer such right. 
 
 If/e are unable to find an.y statutory authority for a trial 
 by jur'/- in a Police Court as organized under our lav/, and conclude 
 that the coui-t properly refused the demand for a trial by that 
 method. 
 
 II. A change of venue, or as it has been more recently denom- 
 inated a change of the place of trial, is purely of statutory 
 origin. It iu.s no recognition in the common lav/. If the right there- 
 to exists it must Tr.f found ir> the statute, and here we have ao 
 statute authoriaiiig ^ change from the Police (Jcurt in a crim'nal 
 prosecution for a violation of r city ordinance. It is claimed that 
 the venue should have bee"> changed to a just ice cf the peace, not 
 because there is any exT)res3 statutory authoritv therefor, but 
 because it is provided in section 4707 that proceedings in police 
 and city courts, i:: crimina.. cases v/ithin their jurisdiction, shall 
 be rogul-'ted by t^e p-ovisions of the Code, when not oLh'-rrwise 
 regijlated by lew. The arg-jnent is that the -oroceedings should be 
 
 526 ;i
 
 The Ireliiuinary Examination, and Summary Trial of 
 
 Honiiidictabl e Offenses 
 
 82 
 
 the same as Ltfore a jutjtice cf the peace. It is true there are 
 provisions cf the Code upon the subject of tne change of the venue 
 cf actions. Some of these provisions are applicable to civil ac- 
 tions, others to criminal cases, and some apply to courts of record 
 and others to inferior courts; but there is no warrant for the claim 
 that the proceedings of any one court should be adopted rather than 
 another. In this state of the law it must be held that the pro- 
 ceedine:s refer-^ed to could not have been intended to embrace proceed- 
 ings for a chanpre of venue. 
 
 In Jacquith y ._ Royce. 42 Iowa, 406, it was held "the juris- 
 diction of mayors of cities and incorporated towns over perscns 
 guilty of viol.-iticns of municipal ordinances is not exclusive, and 
 a justice cf the peace may issue a warrant for the arrest of one 
 charged wHh such offense, and detain him in custody till the day 
 of trial." It is contended by counsel for ap-nellee that under this 
 rule, the jurisdict ion bei -;g concurrent, a change of venue mig-^t 
 prOTDerly be demanded either before a justice of the peace or a mayor. 
 But the section cf the statute construed in that case is applicable 
 only to cities of the second class and incorporated towns. The 
 Police Court in cities of the first class' is another tribunal, 
 created by different and distinct sections of the statute. In the 
 case of French v. Ifervin, 46 Iowa, 584, it was held that a change 
 of venue may be taken from the court of a mayor of a city or an in- 
 corporated town to that of the justice of the peace. The opinion is 
 based upon section 506 of the Code, which provider; that the rules 
 of law regulating proceedings before a justice of the peace shall 
 be applicable to proceedings before such mayor. This section has 
 reference to mayors of cities of the second class and incorporated 
 towns, lio reference is made therein to police courts, which, as we 
 have seen, are a separate and distinct tribunal. There is no pro- 
 vision of law requiring the proceedings in the police Court to be 
 regulated by the Isv/ applicc.ble to justices of the peace. It is true 
 certain jurisdiction is' conferred upon them, concurrent with justices 
 of the peace, but pow'->r and jurisdiction are essentially different 
 from the form of procedure. 
 
 V/e might have disposed of this question in a very summary 
 manner by simply follo\;ing the rule of The State^of Iowa v. 1^1 i^^". 
 ante, 133, //h j ch holds that the overruling of a motion for a change 
 of venue from the court of a mayor to a justice of the peace 
 worked no substantial prejudice to the party charged, since he is 
 allowed a new trial upon the me-^its in the District Court, and that 
 the onlv remedy to correct the error was by appeal. But we have 
 thought' the public interci'ts demand a settlement of the practice 
 based upon a construction o^ the statutes, and our investigation 
 leads us to the conclusion that the motion for s change of venue 
 was prcperlv overruled, 
 
 " 5J!6 3 ,
 
 83 
 The Preliminary Exani nrt ion, and Summery Trial of 
 "o ni nd i ct ab 1 e Off ens es 
 
 III. That the police court ht.d jurisdiction of the suLject- 
 raetter - that is, vicl&tioa of the ordinance o ;; the city - and 
 that it had jurisdiction of the person of the party charged /dth 
 such violation, and that the judgment rendered by the coui-t was 
 such as '.vcxs t.utho rased by ti:e ordinance, must all be conceded. The 
 judgment was, tnerefore, not void, and habeas cor pus will not lie 
 to correct errors of a court having jurisdiction on the oubj'.-ot- 
 matter and the person charged. If the court had jurisdiction of 
 the case, "rnfre irregularities or errors of judgment in the 
 exercise of that jurisdiction must be disregarded on this v/rit, 
 and must be corrected by the court, issuing the process or on regula: 
 appellate procedings." Cooley's Const. Limitations, 347. 
 
 Reversed. 
 
 ■P^ 
 
 St.'.te V . Sipult . 
 
 Supreme Cou-^'t o^ Ic-«a, 1S64. 1? Iowa 575. 
 
 Lo v/e, J . - Information for petit larceny upon which the 
 defendant wras convicted. rle relies, ir> this court, upon the fcllr-.v- 
 i nfT po i nt s : 
 
 1. That the cri.^inal information is defective, in not charging 
 that the larceny had 1- cen feloniously ccnmitt ed .^he language of 
 the accusaticn is in the wo i-ds of the statute ( (4237), that the 
 defende.nt dia steal, take and carry away, (Sic. This is all that 
 
 is required in an informat iontr^o re a justice of the peace. The 
 information in tnis case in fully up to t'le renuirements of the 
 statute, and very well drawn. 
 
 2. Thc.t the magistrate had no jurisdiction to try the cause, 
 for the reason that although the property said to be stolen was 
 worth less than twenty dollars, it was taken, i f at all, in the 
 night season, from the stable of the prosecuting witness, and the 
 offense -was therefore indictable. The wxsrds of the statute ( |4238) 
 are: "if any person in the night time, commit larceny in any 
 dwelling house, store, or any pubic or private builidng," &c . It 
 
 may well be doubted whether a stable falls under the description 
 of building above desirnat^d. 
 
 The charge in the information is not thf^t the larceny was 
 committed in the ni'^ht time from a stable or ether buildin^?, but 
 thc,t the defendant stole, took and carried away a set of harness, 
 the property of the prosecuting witness, on a certain day. It is 
 only f'rom thr- evidence that we learn that it occurred at night and 
 
 52 o 3
 
 84 
 The Preliminary Exami net ion, and Summary Trial of 
 Nonindictable Offenses. 
 
 from a stable. There is nothing therefore appearing affirmatively 
 on the face of the proceedings that shows a want of jurisdiction; 
 and the defendant is not to be heard to allege, under such circum- 
 stances, that he has not been prosecuted for the greater instead 
 of the lesser offense. 
 
 Affirmed. 
 
 State V. £itman. 
 
 Supreme Court of Iowa, 1862. 13 Iowa 485. ^ 
 
 Ealdvnn, C. J . - The information upon v/hich the defendant 
 was arrested, tried and ccnvicted, charges him with cruelly and 
 inhximanly whipring and beating his own child, being about three 
 years old. 
 
 A demurrer to this information was filed in the justice's 
 court presenting several objections tc its sufficiency, only t vvo 
 of y/hich we deem it important to consider: first, because it did 
 not charge the public offense of assault and battery; second, be- 
 cause the name of the person upon whom the offense was said to 
 have been comr>iitted was not given. 
 
 This dP-nurrer v/as o-'-erruled cv the justice, and the bill of 
 exceptions shoves thrit upon appeal the same objection was made 
 and overruled in the District Court. 
 
 The information is not objectionable upon the first ground 
 named. The language used is sufficient tc indicate that the 
 offense had been cornmitted. It is not required that the informatio: 
 should state in so many words thatthe defendant was guilty of the 
 offense of an assault and battery. """^ Tt is t'i^ jc rig iit_ ^f a pareii^ to 
 chas L ' lbi ' b hlb child, la tr^nen such chastisenent amounts tc cruelty 
 or inhumanity, or where, as the court belov; charged the jurj'', the 
 parent or master goes beyond the liue of reasonable correction, his 
 conduct becomes more or less criminal. 
 
 Cruelly and inhuraanly whipping implies an unlav/ful and will- 
 ful assault and battery. Any words used in the information which 
 substantially and plainly set forth the acts of the defendant whi'tl 
 arcount tc an offense, are sufficient. 
 
 The second objection is, that the name of the -oerson upon whom 
 
 5265
 
 85 
 The Prelimisry Exaninet ion, and Suncnary Trial cf 
 - nonindictable Offenses 
 
 the offense vvas committed is not given. This omission renders the 
 information defective. It v/ould, without dcutt, invalidate an 
 indictment, if the State should fail to allege therein upon v/ioom 
 the offense had teen committed. 
 
 The form of an information, as given in J5C58. cf the re- 
 vision, seems to contemplate that the act or omission constituting 
 the offense vath the venue and names and date, should te stated 
 with as m^uch precision as in an indictment. The defendant should 
 te advised of the name of the person upon whom the assault has 
 teen committed, so that he can prepare his defense accordingl;^. 
 
 The information should he so specific that if the defendant 
 is so convicted or acquitted he could plead such conviction or 
 acquittal in tar of any further prosecution for the same offense. 
 
 Reversed . 
 
 Tov/n of Eayard v. Eaker. 
 
 Supreme Court of Iowa, 1888. 76 Iowa 22C, 4C IT. W. 818, 
 
 The defendant, slaving teen convicted in the mayor's court 
 of the violation of an ordinance of the town, appealed to the 
 district court. From a judgment of conviction there he appealed 
 tc the suprem.e court . 
 
 Seevers, 
 
 VII. The ordinance pro '.-ides "that any person, who shall stand 
 any jack, stallion, or hull, or try tc let any jack, stallion, 
 
 or tull, tc any mare or cow, u.iless within an inclos- 
 
 ure so arranged ae to otstruct the putlic view, and in such place 
 as tc prevent the noise thereof from disturting the putlic or pri- 
 vate families or persons within the tovm ," he should te punished 
 as prescrited in the ordinance. The ordinance introduced in 
 evidence was designated as "IIo . 21," and the information was en- 
 titled, "The incorporated town of Payard v. Frank Baker, hefore 
 Thos . Stevenson, mayor of the incorporated town of Bayard, county 
 of Gu7:hrie, and state cf Iowa, " and it proceeded to state that "the 
 
 defendant is accused cf the crime cf violating ordinance 
 
 No. 21, for that the said defendant, at the tcwi of Bayard 
 
 did, agajnst the peace of the st-at e of Iowa, and con- 
 trary to the provisions of ordinance Ho . 21, entitled 'An crdinence.' 
 
 ....'. passed the t wenty-f irst day of March, A. D. 1888, in 
 
 such cases made and provided, and against the jiesce and dignity and 
 good order of said tov/n of Bayard." It is otjected that the 
 
 5263
 
 86 
 
 The Preliminary Examiation, and Sur.Tr.cry Trial c: 
 nonindictable Offenses. 
 
 information is .-Insufficient 
 cr -^vhat tovvn cr citv -oessed 
 
 because it does not appear thst any 
 the ordinance. It is true that it 
 dees net so arriee.r in exTjress words, yet v/e think t heinfcrmat ion 
 is cleerly sufficient. Pr^y person of ordinary understanding, 
 reading the infcrmaticn, v/ould readily reach the conclusion that 
 the defendant wes che.rg-ed v/ith violst 5 ng ordinance lie. 21, passed 
 by the incorporated town of PaT'-ard . The same strictness is not 
 re'^uired in an inforr\at icn for violating an ordinance as in 
 indictment (l Dill. Hun. Corp. sec. 414;; a.nd -^e incline tc 
 '■''"" ■ ■ ■ sufficient under Code, section 43C5. 
 
 an 
 think 
 
 the information i; 
 
 stallic 
 same be 
 doing t 
 do es no 
 being t 
 a stall 
 stitut e 
 which i 
 
 II. The standing, or letting, cr-trj^^ing tc let, any jack, 
 n, or bull to any mare or co-.v is net prohibited, unless the 
 
 attempted at an improper place. The of Tense consists in 
 he prohibited act at such place. Therefore the information 
 t charge tv/o offenses, and is direct and certain; the c 
 hat the defendant "did tiien and there let or try tc let 
 ion serve a mare, " for the reason Lr.at such acts do not con 
 
 any offense unless the same v/^£_dcne at_a__nj:ohib44^d r>l 
 is not claimed is not properiy 
 
 large 
 
 do 
 
 ce, 
 informat ion. 
 
 IX. There are other objections made to the information of a 
 similar character, none of vvhich, in our judgment, are well taken. 
 All the r>oints m&de by counsel pre exceedingly t echnical, and v/ith- 
 out substantial merit. It is also said that the verdict is not 
 sustained by the evidence. .Ye think dif f erentlj^-. 
 
 Affirmed. 
 
 Baurose v . Stat e. 
 
 Supreme Court of Iowa, 1855, 1 Iov;a 574, 
 
 The defendant, having been convicted by a justice of the 
 peace on a charge of unl a v/f u l>y s el 1 i ng liquor, appealed to the 
 district court which aff irm.ed ifh e - jud gment of the justice, on 
 motion, and denied the defendant's motion for a nev/ trial. The 
 defendant then took the case to the Suioreme Court on Virrit of errc: 
 
 Isbell. J. - The first 
 
 resolve themselves into the 
 
 trict Court 
 as the waiv 
 appears that 
 either party 
 where a jury 
 
 and second specifications of error, 
 sam.e question, viz; v/hether the DiS' 
 
 ?rred1nr£f^JPij2iL-t- ■'' ^ - 4g ^ e ^"ida :;t a trial 
 ""of t.^iatr right Idv thedefendaat i 
 tile question propounded by the court, 
 desired a jur}', was asked at a stage of 
 could take nc part; that is to say, 
 
 5263 
 
 by 
 
 jury? So far 
 
 concerned, it 
 viz: whether 
 the cause, 
 on the hearing of
 
 87 
 
 The Ireliminary Examination, and Summary Trial of 
 Nonindictable Cffenses. 
 
 a motion. We cannot, therefore, consider the defendant's right 
 to be tried by a jury as vraived by him; and if he v/ould be en- 
 titled to it on other ground, it should not now be refused him. 
 
 The question whether he was or was not entitled to such trial, 
 involves a construction of s.ections 5 558 __and__336 1. of the Code, 
 as to what is the duty of the District Court, when an appeal comes 
 before it from the trial of a justice in case of a misdemeanor, 
 on the alleged ground that the evidence did not justify the con- 
 viction. And on this point, we should have little hesitation in 
 pronouncing, were it not, tiiat a construction has already been 
 given to this statute, in this particular, by the former bench, 
 which we are unwilling to adept. 
 
 In Kuner v. The State, decided at the December term, 1854, 
 Hall, J.] in delivering the opinion of the court, says;. " v/here 
 a party charged with a criminal offense, appeals upon the alleged 
 ground that the evidence would not justify'the conviction, he is 
 entitled to a trial de ncyo in the District Court." If it is meant 
 by this (which the case there seems to indicate), that the defen- 
 dant, on an appeal from a justice of the peace, on the trial of a 
 misdemenaor, on such alleged ground, is entitled to a trial de novc 
 in the District Court, as a matter of ccmmcn right, in the absence 
 of all showing that the evidence on the trial was insufficient to 
 justify the convicticn; or, in other words, that when the appeal 
 is on that alleged ground, in the absence of such shovdng, the 
 District Court has not the. right to deny such trial, we cannoc con- 
 clude that such is the meaning of the statute. 
 
 It is clear from section 3361, that the appeal addresses 
 itself to the court in the first instance, and that a judgment of 
 the court is contemplated, before a nev/ trial can be had. The 
 language, "may order a new trial, " co nt ^mpl at es a right_tjD__ref us e 
 such trial. ITo distinction is made by the st at iITeT'^on account^ of 
 tH^~g -rcmnd of appeal, as to whether it be for error in matter of 
 law or fact. Section 3358, contemplates in case of an appeal, that 
 an affidavit shall be made stating" the facts showing the alleged 
 errors, a rec^ui-^ement which would seem unnece'sf^ary, unless tc use 
 in the court above, to info .m the court of the probable ground of 
 error in fact . 
 
 The language of these two sections entire, is as follcv/s: 
 
 "Sec. 3358. The defendant may appeal to the next term of the 
 District Court, if on the rendition of the judgment, he, or some 
 one for him. make or cause tc be made an affidavit stating the facte 
 showing the alleged errors in the proceedings or conviction com- 
 plained of, and that he verily believes that injustice has been 
 done." 
 
 5263
 
 36 
 The Irelirrdnury Sxar.inat ion, and SuKirnary Trial of 
 :To ni nd i ct abl e C if ens es 
 
 "Sec. 3561. nfter hearing the appeal, the court sliall give 
 judgment without regard to technical errors or dei''ect3, which 
 have not prejudiced the substantial rights of the defendant, and 
 may render such judgKeiit as the magistrate should have rendered, 
 or Eiay, accordirxg to the justice of the case, affirm or reverse 
 the judgment, in v/hole or in part, as to all or any of the defen- 
 dants, if there be more than one, or nay order a new trial." 
 
 The language of the latter section, is i*^- substance the same 
 as that in sections 2C97 and 3C98, prescribirig the duty of this 
 court, on the hearing of a writ of error to the District Court. 
 The language there used is, "must gi-"'e judgment without regard tc 
 technical errors or defects, which dc net affect the substantial 
 rights of the parties. I'.ay reverse, affirm, or modif:-- the judg- 
 ment of the District Court, or rray, if necessary, order a new 
 trial.'' Yet, if v/e v,-ere to attempt to adept the doctrine in this 
 court, that if the error conplained of v<ias, thet the evidence did 
 not justify the conviction, the defendant v/ould be entitled to a 
 trial de novo, v/ithout sho.ving probable error in fact, it wouli 
 at least be considered unsound. 
 
 But it is said, that tc refuse a trial de novo, violates the 
 right of trial by jury; that when the constitution says, that in 
 all crimin?-! prosecutions, the accused shall ha-re a right tc a 
 speedy trial by an irr.partial jury, thi? neans a co mmon law jury 
 of t v/ elve pen . This, perhaps, might be true, were it not also for 
 the provision of the constitution, that the General Assembly may 
 a'jtthorize trial by a jur^'- cf less number than tv/elve men in in- 
 ferior courts. It is sufficient that the accused y/as tried by a 
 constitutional jur:,'. To asst^me that no offense may be tried by a 
 jury of a less number than tv.elve, would be to oust justices of 
 the peace, as the lav/ new stands, of all jurisdiction in such 
 cases; for being inferior courts, the statute confers their powers, 
 and as there is no authority for their summoning a juay of twelve, 
 and as the accused is entitled tc be tried by a jur;/, the trial 
 of any given case b;v a justice might be entirely/ prevented - an 
 extremity in which we see no need of being placed. As ^ue under- 
 stand the statute, it is the duty of the District Court, on an 
 appeal in such case coming up, to first inquire into the case made 
 bv the appellant, and dete-^nine whether error, prejudicial to the 
 substantial rights cf the defendant, e:!j:i3ts. In this inquiry, the 
 presumptions are in favor of the correctness of the proceedings. If 
 the defendant fails to show probable error before the justice, it 
 is the duty of the court to affii-m the judgment. If the alleged 
 ground of appeal is, thtt the evidence did not justify the con- 
 viction, the defendant, either by ":is affidavit, made for the pur- 
 pose of appeal, or by bill of excerticns taken on the trial, should 
 bring the ei'idence so before the ccurt, as to render error at least 
 probable; and in case he does not dc so, the court should affirm 
 the judgment, "or is there any :iardship in requiring this, the 
 accused being entitled to counsel. 
 
 5253
 
 89 
 The preliminary Examination, and Summary Trial of 
 nonindictable Offenses 
 
 ■Regarding the duty cf the court in this light, let us turn to 
 the case before us, and see if the defenda nt m ade such __a— g-he^ng 
 of pro bable error in fac t, as to renS'er it^ error in the court to 
 reftrS'eTrim a new trial . From the whole record, including the affi- 
 davit for appeal, v/e conclude that the insufficiency of evidence 
 complained of as error, is in this, that the evidence did not 
 justify the jurj,- in c'oncluding that the liquors sold v/ere intoxi- 
 cating". The affidavit, v/hich is all the evidence on that point, is 
 as follows: "Dr. Fairffeld came in and called for brandy, and 5. 
 M. Phelps called for run; that Dr. Fairfield poured out of a 
 bottle what locked like brandy, into a glass, and drank it; and that 
 the said phelps^poured out of a bottle into a glass something, and 
 drank it, and^t^?" the bottle was labelled 'RaTi; ' and this v/as all 
 the knowledge of said witness tha t_ eit^ ier cf the liquors drank by 
 said Fairfield and Phelps, was intoxicating liqi^r." 
 
 Under this state of thR pvijgr,r.p , -disclosed by the defendant 
 in his affidavit, v/ithout more, as that Fairfield or Phelps ob- 
 jected, that what was given them v/as not that which they called 
 for, or something at least ieadin^to b. conclusion in this direc- 
 tion, we think there is not ground for a reasonable dcubt but that 
 they drank thst which they called fo r; or, in other words, that the 
 liquors sold were intoxicating liquors, to-wit: brandy and rum. 
 vVe therefore con clude, ^thgt there v/a s not probable ground cf error 
 on the part of the cour? in affIrmihg~The~jTidgment . ■ 
 
 So much of the judgment as affirmed the judgments of the 
 justice was affirmed - another "cart of the judgment was reversed. 
 
 State v. Valure. 
 
 Supreme Court cf Iowa, 1895. 95 Iowa 401, 64 IT. V/. 2SC . 
 
 H obinson. J . - 
 
 The grounds of the motion to dismiss filed in the district 
 court were not the sane as the one rcaSTC^in justice's court, and 
 the record does net showcl^rly that the allegations of fact 
 upon which the former is-Tiased are true. By treating their, as true, 
 and the questions raised as properly presented in the district 
 court, we must hold that the motion v/as rightly overruled. The 
 correctness of the ruling must 'be determined by the law of this 
 state. The alleged errors which were cornmitted in ju^TTice^s court 
 were not of a character to affect any substantial right of the 
 
 5263
 
 Th'e Preliminary Examination, and Sximmary Trial of 
 Nonindicvatl e Offenses 
 
 defendant. Section 47C2 cf the Code provides that Yjheri an appeal 
 is taken froiTi a justice's court in a criminal case the cause 
 appealed shall stand for trial anev/ in the district court in the 
 same manner that it should have been tried before the justice, v/ith- 
 out regard to technical errors or defects v/hich have not prejudiced 
 the substantial rights of either party. The next section provides 
 that no appeal from a justice's court shall ce dismissed. Under 
 these provisions the alleged failure of one of the justices to make 
 proper and timely entries had no effect upon the rights of the 
 parties after the appeal to the district ccuro was taken. The au- 
 thorities cited in support of the claim of the appellant on this 
 branch of the q^se are from other states, and relate chiefly to 
 civil cases. ^ 
 
 Affirmed, 
 
 Tovm of Lo villa v. Cobb. 
 
 Suprerie Court of Iowa, 190 5. 126 Iowa 557. 102 II. v/. 495. 
 
 The defendant appealed to the district court from a conviction 
 before a magist r,^e_on a charge cf violating an ordinance of the 
 plaintiff tovvn. ^^'demurrer, filed by the defendant in the district 
 court, wa? overruled after t he plaintiff had been permitted to file 
 an amendment to the information. The defendant v/as then tried and 
 convicted, and from the judgment of conviction he appealed. 
 
 I^' Deemer, J. - 
 
 • III. IJext it is argued that the mayor who originally tried 
 the case had no jurisdiction - ?irst, because the information was 
 not marked f LI ed._by_ him: and, second7~^ because it did not locate the 
 place where the offense is said to have been comjnitted. The first 
 point is v/ithout merit . True, the original information v/as not i 
 
 marked filed; but "€his v/as not essential to give the magistrate 
 jurisdiction. It y.-as,in fact sworn to before^'the mayor, and left 
 with him as an information. He treated it as such, and acted thereon 
 Cn that defendant was convicted, and from the judgment thereon he 
 appealed. This shows a §'uf7lclent filing. State v . Briggs. 53 Iowa, 
 416; St at e v . Gui s enhaus e, 2d^lcv:a, 227. 
 
 The sufficiency of the information in its charge as to the 
 location of the place kept bv the defendant was not challenged unti- 
 the case reached the di gtrint' c ourt. Upon such challenge being in- 
 terposed, plaintiff filed an amendment to the information, making 
 
 526 5 
 
 y/r ■ 
 
 r i ^
 
 91 
 The Preliminary E>:ardnat icn, and Sumary Trial of 
 I'cnindictable Cffeiises 
 
 the charge in thif? respect specific. Tiiat an inforniat ion may be 
 amended is too well settled to rev vaire_ the citation of authorities, 
 and the amendment may '^e made after appeal tc the district court. 
 S tate ?. lie r chant. 36 lov/a, 375; St at e v . Do e, 5C Iowa, 541; State 
 V. Heilly, ICS lov/a, 736. 
 
 IV. IJext it is argued that the amendment to the information 
 was not verified. This point does not seer, to have teen made in 
 the district court, jloreover, the aroendKent appears to have Leen 
 SY/orn to before the mayor. Put it is said that the ns.yov was outside 
 of his jurisdiction when he administered the oath. The presump- 
 tion is otherv.irse, and this pr esump tion is not rebutted by anything 
 in the record. '^* ^ 
 
 V. In a reply argument defendant contends that he v/as entitled 
 to a jur:' trial* in the district court, and that this right cculd 
 not be v/aived. This point, e-y'-e n i f properly raised, is settled ad- 
 versely tc defendant' in Stat e"" ?":^ Ill .. 74 Iowa, 441 . Conceding, 
 arguendo, that the proceedings are crjjranal in character, yet as 
 tney are to be tried i.-i the same manneri 5cti^^~o^iginaliv and on 
 appeal, as proceedings before a .just ic e (Code, section 692), defen- 
 dant cc'old waive a jury on hi s appe al . 
 
 VI. Lastly, it is argued that there is no evidence to support 
 a conviction. In answer tc this it is sufficient tc saj.' that we 
 find ample evidence tc sustain the ch.arge. 
 
 There is nc error, and the judgment is affirmed . 
 
 • Section 5. 
 
 Discharge, Commitment and Bail . 
 
 If, as a result of a summary trial for a nonindictable offense 
 the defendant is acquitted, either by the justic-e,'or by a jury, he 
 must be i mrn ed i a t el y Airs c ha r g e d (560 5) and h&s the benefit of the 
 rules of former jeo pardy . _,ut if the discharge is because, on pre- 
 liminary examin^ticn^ ?he magistrate does not find that any offense 
 has been ccmr^iitted, o-^ finds that an offense was committed but 
 that there is nc sufficient reason to believe the defendant guilty 
 thereof (5229), there has been no judgmei-it cf ccn'/iction or acquittal 
 and the rules cf forme r jeoio ardy do not a-prjly. If the result of 
 the sammarv trial is t^Ttt^Te* defendant is' convict ed, cr if he plead- 
 ed guilty, ■' the .iustice shall render judgment thereon of fine or 
 
 5263
 
 92 
 
 Discharge, Corpjr.it merit and Bail. 
 
 imprisonment, ss the c"se may require" (5603). Unless appeal 
 taken "the judgment shall be executed by a peace officer of th 
 
 is 
 e 
 
 the defendant 
 
 the Steps of the Defendant. 
 
 Each material witness for the state is required to enter into 
 a written undertaking to appear and^testify at the defendant's 
 trial (5232), and may be required to give security therefor (5233). 
 If any witness refuses to comply v/ith such borders he must be 
 committed by the magistrate (5235). The magistrate must then 
 "return tc the district court of the county, on or before its open- 
 ing, on the first day of the next term thereof, and as soon after 
 the closing of the examination as T)ract icabl e, all the Tsapers filed 
 in the nrcceeding, including therewith the minutes of the evidence, 
 together v/ith the undertaking of bail for the appearance of the 
 defendant, and the undertakings of the. witnesses or for then, taken 
 by him". (52 36) . * ' 
 
 5263
 
 « 
 THE IITDICT^jTEITT 
 
 Sect ion 1 . 
 
 The Finding and Presentation by the Grand Jury. 
 
 'The grand jury, one of the ancient English institutions, is 
 a "body of men summoned frora all parts of the county to pass upon 
 accusations of crime therein. The number was variable at conmoni 
 lav/, but could not exceed t v;enty-three nor be less than twelve. The 
 Constitution of Iowa says (/article 5 Section 15; that "the grand 
 jury may consist of any number of members not less than five, nor 
 more than fifteen, as the general assembly made by law provide." 
 The provision made by the general assembly was that the grand jury 
 shall consist of seven (S240. For the statutory previsions as to 
 prenaration of lists and method of drav/ing see Compiled Code, Q } 
 6992 tp 70oC inclusive and tj(j 9299, 9X0 and 9X7). "All quali- 
 fied electors of the State, of good moral character, sound judg- 
 ment, and in the full possession of the senses of hearing and see- 
 ing, and v/hc can s-oeak," write and read the English language, are 
 competent" to serve upon the grand jury (332), but the law express- 
 ly exempts certain persons from liability to act as jurors. (Supp. 
 l\ 333) and sets forth what circumstances will constitute an 
 excuse for others (334). "From the persons impaneled as grand 
 jurors the court must appoint a foreman" (5248) to whom a special 
 oath is administered (5249). The other grand jurors are sworn to 
 "well and truly observe" "the same oath" (5250). The grand jury 
 is then charged by the court (5251) after which it proceeds to 
 "inquire into all indictable offenses which may be tried within the 
 county." (5253). '.Vitnesses may be required to attend under sub- 
 poenas issued by the clerk of the court (5262; and see 5271, 5270, 
 and 5255), and the county attorney may attend for the purpose of 
 examining witnesses (526^4) or giving information (5265); but no 
 person but the grand jurors shall be present when the vote is 
 taken upon the finding of an indictment (5265) . 
 
 A bill of indictment is a written accusation of crime drawn 
 b.y the prosecuting attorney a.ad submitted to the grand jury. If 
 this bill is found and presented by them upon oath or affirmation 
 as a true bill, it then becomes an indictment and the accused 
 stands indicted. The concurrence of at least twelve grand jurors 
 was necessary at comii.on* law, but under our Code the concurrence of 
 five is sufficient (Supp. '13, j 5274a) . If there are not five 
 grand jurors who vote that the bill of indictment shall be found 
 to be a true bill, they "ignore"it, whereupon it does not become 
 an indictment and the accused person is not indicted. If the grand 
 jury of their ov/n knowledge, or of their own motion on information 
 from others, take notice of a public offense it is called a pre- 
 sentment. By general practice at common law, this presentment came 
 to be regarded as a mere instruction to the prosecuting attorney 
 to" draw a bill of indictment. If such bill was drawn by him and 
 found by them to be a true bill, this indictment became the basis 
 
 5263
 
 The Finding and Presentation by the Grand Jury 94 
 
 of the prosecution. In sone other jurisdictions it has been held 
 that a prosecution can be based upon such presentment without any 
 indictment or informotion (State v. Hunter, 1845, 5 Hunphr. (Tenn) 
 597). It is probable that it v/as because of this notion that we 
 find in the Constitution of lov/a (Article 1, Section 11) language 
 to the effect that no person shall be held to answer for certain 
 offenses "unless on presentment or indictment by a grand jury". 
 £ut this wording disappeared in amendment (in 1884 - the amendment 
 was inserted as section 15 of article 5) and it has not been the 
 practice in this state to use this presentment in lieu of an in- 
 dictment. The result has teen a tendency to use the v/ord "present- 
 ment"' for another purpose. It is the duty of the grand jury to in- 
 quire into all indictable offenses which may be tried »vithin the 
 county and "present then to the court by indictment" (5253). In 
 the foreman's oath (5249; this is referred to as "presentment". As 
 30 used it has reference to the presentation of the indictment to 
 the court. (And see 5267). 
 
 Stat e V . Tucker . 
 
 Supreme Court of Iowa, 1866. 20 lov^ 508. 
 
 An indictment having been set aside on motion of the defendant, 
 the state appealed. 
 
 Dillon, J. - The record shov/s that five witnesses, in addition 
 to the said Philomela, gave competent evidence before the grand 
 jury, and sufficient, even if hers was excluded, to justify and 
 even require them to find a bill. To sustain the ruling of the 
 court, the defendant 's attorney cites us to subdivision 4 of sec- 
 tion 4691 of the Revision, which provides that the indictment shall 
 be set aside "when any person other than the grand jurors was pres- 
 ent before the grand jury during the investigation of the charge, 
 except as required or permitted by law." 
 
 It is not claimed that the wife "was present before the grand 
 jurj'- during the investigation of the charge" against the indict- 
 ees, except when being examined as a witness . 
 
 But the objection is, that she was present as a witness; and 
 the argument to support it is, that being the wife of one of the 
 defendants on a joint charge and indictment, she was incompetent 
 as a witness (Rev. i59o-3). that being in.competentt as against 
 
 her husband, she is likewise incompetent as against any co-defen- 
 dant (1 Greenl . Ev., {(/ 334, 335); that from the nature of the 
 charge she cannot testify against her daughter, without at the saime 
 time im.plicating her husband; that being for these reasons incompe- 
 tent as a v.ltness, she was "neither required or permitted by law" 
 to be present during the investigation before the grand jury. It is 
 
 526 3
 
 The binding, and Presentation by the Grana Jury. 95 
 
 not necessary to decide v/hether tne v/ife is a competent witness 
 against her husband or her daijighter. Even if it be admitted that 
 she is not, still this constitutes no ground for setting aside 
 the indictment. The section of the Revision cited (4691, sub-div. 
 4), hss no reference to such a case. 
 
 Its object is to exclude outsiders or spectators from the 
 grand jury room. 
 
 Whether v/itnesses are competent is often a very difficult 
 question of lav/, and to hold that if the grand jury, in the 
 course of their investigation, happen to examine an incompetent 
 witness, that this will have the effect to vitiate their finding, 
 is going a step further than we are prepared to take. The motion 
 of the daughter to set aside the indictment should have been over- 
 
 ruled 
 
 ■Reversed . 
 
 State V . Clapper, 
 
 Supreme Court of lov/a, (1862). 59 lov/a 279, 13 IT. »i/'. 294. 
 
 The defendant appealed from u conviction of the crime of 
 taking goods and chattels from ^Jie_custody of an officer. 
 
 • 
 Seevers, Ch . J. - The attorney-general has filed an amended 
 abstract v/nicii, as v/e are advised, has been served on the defend- 
 ant, who has made no response theretlD . Under such circumstances 
 auch abstract must be deemed trueT~~ This being so, there are but 
 two questions that can be c ons idered by us. 
 
 The first is whether the court erred in overruling the 
 m.otlon to set aside the Jndictment . It arrears a previous indict- 
 ment had been found forTPTe same offense v/hich, for som.e reason 
 not disclc-ed by the reco'ra^ was set aside and the cause referred 
 back to the grand jury.* In the absence of any showing to the 
 contrary, the foregciT^ action of the court must in all respects 
 be presumed to be correct. 
 
 As v/e understand, the present indictment was found on the 
 minutes of the- evidence attached to the first indictment and one 
 additional fitness who was/examined before the grand jury. The 
 motion-f? s^t' aside the indictment, among ether reasons, " was based 
 on the fact that all the witnesses utjon whose evidence the indict- 
 ment was found v/ere not examined by the grand juiy. £ut this is 
 a mistake. Both indictufi^Tf s were found bv the same grand juTy 
 and tnerefore the witnesses vyere examined' bysuch jury. V^hen the 
 I irst indictment was found the grand jurorsHeard the evidence and 
 saw the witnesses, and there v.a^jno necessity to hear or see them 
 
 3263 
 
 / 
 
 ♦^ 
 
 y
 

 
 The Finding and presentation by the Grand Jui: 
 
 96 
 
 again. Several other reasons are assigned iia the motion as grounds 
 for setting aside the inajjatii^nt, but in the state of the record 
 the foregoing is the only one that can be considered. 
 
 The second question v/e are called uron_to consider is as 
 to the sufficiency of the indictment. It*~was found under section 
 3915 of the Code, and substanTially charges a crime as defined by 
 the statute. We are unableto discover any objection thereto. The 
 most precious grounds assigned in the demurrer is that the sheriff 
 from whom the property was taken was alleged to be the o-iwner there- 
 of. This, we think, is correct because the sheriff v/as a bailee in 
 possession. 
 
 Affirmed 
 
 S tat e V . (^ ^sbcrne . 
 Supreme Court of Iowa, 1885. 61 Iowa 33C, 16 IT. vV. 2C1 . 
 
 From a conviction of first degree murder the defendant 
 
 a^^eal ed , 
 
 Beck, ■ J. - I. The prisoner v/as lield to ansy/er before the 
 grand Jury fcr the crime for which he was i nr i ct"e d, and, in the 
 exercise of the right conferred by statute, challenged a grand 
 juror, on the ground that he had formed and expressed an opinion 
 of defendant's guilt. See Code, (j d 4258 and 4261. The challenge 
 vi/as sustained, and the court, under § 4264, directed that the 
 juror objected to should not be present at or take any part in the 
 consideration of the charge against the prisoner. This direction 
 was disobeyed, and the juror v/as present during the consideration 
 of the case by the grand jur;,^. Upon the return of the indictment, 
 it was set aside upon motion of the prisoner, based upon the mis- 
 behavior of the juror just stated. Thereupon the court, against 
 defendant's objection, re-submitted the case to the same**grand 
 jury, again directing the juror v/ho had been challenged to take no 
 part in the consideration of the charge against the -orisoner, and 
 not to be present v/hen the case should be considered'. The prisoner 
 asked permission to challenge the grand jurors to whom the case was 
 finally submitted, on the ground that they had formed and expressed 
 an opinion of his guilt. This was denied, and the riiling consti- 
 tutes the only ground of error that nee d be considered upon this 
 appeal . • """ — — 
 
 II. Code, 5 4261, conferring UT)on the prisoner theg|right 
 of challenging grand jurors on the ground of opinions, formed and 
 expressed, of his guilt, does not prescribe the time within which 
 the right shall be exercised, ITor does it prescribe that, if the 
 fight be exercised, and one or more of the jurors be challenged 
 
 " — ^ - 5263
 
 The Finding and Freseiatat icn by the Grand Jury 
 
 97 
 
 further challenges shall not be made, when ground therefor arises 
 sfter the first challenge, In the absence of any statute sc pro- 
 viding, the prisoner ought to be permitted to exercise tne rignt 
 to challenge the jurors e.t any time before they consider the case 
 upon information gained that they^are lawfully subject to cnaiienge 
 on account of raatters arising af ter a^ prior challenge ^^\^^^^^ ... ^ 
 made. A different rule would defeaTnTiB-v^ry purpose of the statute 
 namely, to secure a fair and unprejudiced grand jury, to wJiom tne 
 charge shall be submitted. In the case before us. after tne ursL 
 indictment was set aside, the rights of the prisoner were no otner 
 or different from what they were when the first challenge was made. 
 He had a right to an unprejudiced grand jury. Tne proceedings re- 
 sulting in the first indictment stood for nothijig. The prisoner 
 should have been perraitted to fully exercise his right to challenge 
 the jurors. There was ground for believing, nay, for kno wi ng, tnat 
 the jurors hsd formed and expressed an opinion of the prisoner s 
 guilt for they had heard the evidence, and upon their oaths re- 
 turned an indictment against him. But. it is said, they gained tne 
 knov/ledge of the facts, and expressed their opinion of his guilt, 
 acting as grand jurors. This does not cha nge the ca se. Suppose one 
 of the grand jurors had been upon a coroner's jury, or had been 
 upon a jury before v/hom an accomplice had been tried and convicted. 
 In each case the juror would have gained knowledge of the facts, 
 and expressed an opinion of the prisoner's guilt, under circumstan- 
 ces substantially the same as existed in this case. It will not be 
 claimed thet he would not be the subject of challenge. It is also 
 said that no prejudice resulted from refusing defendant the right 
 to make the challenge, as he was convicted, and thus shown tc be 
 guilty; and that we must presume another grand jury would have 
 found an indictment against him. The facts stated may all be ad- 
 mitted, but v/e cannot exercise a presumption of a prisoner's guilt 
 in order tc sustain proceedings resulting in his conviction. Such 
 a rule would, in effect, declare that a verdict cures^a ll v iolations 
 of law and irregularities in criminal trisils. The State v. Gillick, 
 7 Iowa, 287, supports the conclusions we have announced. 
 
 III. It is insisted that, as the courts may resubmit the 
 cause to the same grand jury, under the provisions of Chap. IX', 
 Sec. 5, Acts of the Eighteenth General Assembly, (Miller's Code, 
 p. 1C08, and McClain's Statu tes, p. 106 7^ ) this provision would 
 be defeated if the prisoner may challenge the grand jurors on the 
 ground of knowledge de rived , and an opinion expressed, in proceed- 
 ings resulting in a prior indictment. £ut this provision must be 
 construed in harmony with other statutes, and it must be under- 
 stood as directing that a charge may be resubmitted to a grand 
 jury, to be examined under the rules else where prescribed. In this 
 viev/, the right of challe nge is not abridg"ed"^ 
 
 IV. The State v Fowler, 52 Iowa, 10 3, is cited bv the attornev- 
 general m support, of t.'ne position that, as no prejudice was shown' 
 in refusing to defendant the right t,o^_£hall enge' the jurors, the de- 
 fendant cannot now fco-B^Dlariri . In that case it was proper to presume 
 
 6263 ^^
 
 The Finding and Prese««tat ipn bv the Grand Jury 96 
 
 that no prejudice resulted from a failure to afford the prisoner 
 an opportunity to challenge a grand juror, who took the place of one 
 who was excused from the jury, in the absence of any showing cr 
 ground of inference that a cause of challenge existed. Lut in this 
 v/e r.iuet presume that there v/as good cause for challenge of the 
 jurors, on the ground that they had formed and expressed an opinion 
 of the prisoner's guilt. The State v. Felter, 25 Iowa, 67, is in 
 the same manner distinguished from this case. There was no ground 
 upon which prejudice could te presuraed in that case. In this case, 
 as we have said, there is ground to presume that the grand jurors 
 had formed and expressed an opinion cf defendant's guilt, and they 
 were, therefore, under the lav/ subject to challenge. The right of 
 the prisoner to have the cnarge considered by a grand jury of the 
 character co nt er.pl at ed by the statute cannot be denied. 
 
 The judgment of the district court is reversed. But the 
 defendant will remain in custody to await the action of the grand 
 3ury, and the cause will be remanded to the district court for an 
 order resuhmitt ing the charge to the grand jury. 
 
 Reversed . 
 
 Stat e V , Harris . 
 
 Supreme Court cf lov/a, 1919. - Iowa - 172 IT. V7, 942. 
 
 The defendant ap-neeled from a conviction of the crime of hav- 
 ing maliciously threatened a certain person. 
 
 Ladd, C . J . An indictment v/as returned against the accused 
 September 4, 1 91 S, and tv/o days later he moved that it be set aside 
 for that one Schmidt, who had been regularly drawn and summoned as 
 a grand juror, had failed to appeer, and in his ste&d one Miller 
 acted as meraber of said grand jury. This motion was confessed by 
 the county attorney September IC, 1 91 8, and the court ordered the 
 indictment set aside and "that the case be submitted tc the grand 
 jury tt the Cctober term, 1918." At the^ctober term the grand jury 
 was impaneled v/ith »•/. uTT'TTeynoldc, Henry Hansman, and m. Miller 
 as members thereof, who had also served as members of the grand 
 jury which returned the indict;nent set aside: 7 
 
 The accused challenged each of these persons for that, as v/as 
 contended, he had "formed or expressed such an opinion as to the 
 guilo or innocence cf the prisoner as would prevent him«from render- 
 inPT a true ve-dict UTcn the evidence submitted on the trial" (sec- 
 tion_5243. Code), and each challenge was overruled. 
 
 5263
 
 The Finding and Tresentation by the Grend Jury 99 
 
 RfSjTiolds had answered that he had no acquaintance v/ith the 
 accused save 5S he aiopeared before the previous grand jury, and 
 that all he knew about the case v;as what he had heard at that 
 tixne; that he then f c rmed and exr;ressed a -cositive opinion as to 
 the merits of the case, and still had it; that it would prevent 
 hiri from rendering a true verdict if the evidence was the sane as 
 before the grand jury at the previous term of court; that his opin- 
 ion woiild be as then expressed unless he had some reason to change 
 i-^, and that he then voted to return an indictment. Thereupon the 
 court elicited the fact that he vTas not prejudiced against the 
 accused and could listen to the testimony "with relation to finding 
 nn indictment or not ".vithcut any passion or -Drejudice or feeling 
 against" hin, and that he could "return such a verdict as he be- 
 lieved the evidence warrant ed .J,^ Thereut)on the challenge was over- 
 -i-uled. • ^ 
 
 Kansman and Lliller testified practically the same as did 
 Reynolds, save thet on examination b^'' the court Hansman said that 
 he did not mean tc say that he had any opinion as to the guilt or 
 innocence of the defendant, though he had testified that, "if the 
 evidence v/ere the same as was submitted before, he v/ould vote the 
 same ;vay, " and declared that he had "formed a positive opinion as 
 to the merits of the case." ICiller swore that the fact that he 
 had voted for an indictment before would have an influence on his 
 vet e again. 
 
 It is apparent from the court 's ruling that too much signifi- 
 cance was given to the fact that these men could proceed without 
 any feeling cr b i a s ^ a i ns t __t^he_ accu sed. This is not enough to 
 qualify the juror. /The -test prescribed is whether such an opinion 
 had been formed or expressed concerning his guilt or innocence as 
 \vculd prevent*"them from rendering a true verdict .J Each declared 
 in the most positive manner that he had formed AfA expressed such 
 an opinion. The finding and return of an indictment confirmed this, 
 and there v/as no room for ruling otherwise. The challenge should 
 nave been sustained. See Stat e v. Csborne, 61 Iowa, 3X, 16 !I. ./. 
 2C1, where evev^r point raised is ruled adversely to the contentions 
 01 tne state. See, also. Stat e v. Gi llick , 7 Iowa, 287, and State v. 
 £ullard. 127 Iowa, 168, lCTlTT~t7ir2C: 
 
 The judgment of the district court is reversed, but the 
 defendant is continued in custody, and the cause remanded to the 
 district court for sucn order v/ith reference to resubmission to 
 the grand jury as may be deemed Spprcpriate. 
 
 "Reversed and remanded. 
 
 526 3
 
 The Finding and Presentation ty the Grand Jury IOC 
 
 Hobson V. District Court of Linn County. 
 
 Supreme Court of Iowa, 1920, - Iowa - 177 N, iL 4C . 
 
 A witness refused to gi^'e testimony "cefore the grand jury 
 upon the ground that the evidence sought was ininaterial and not 
 germane to any matt er then under investigation before that body. 
 Having been ordered^^committ ed to the county jail until such time 
 as she signified a willingness to testify, she instituted pro- 
 ceedings for cert iorari^to test the authority of the court to make 
 such order. ~^ ■ ' =» 
 
 Ste vens, J.- After being duly sworn by the fore-man as a 
 witness before the grand jury of Linn county, plaintiff declined 
 to ansY/er the following questions; 
 
 (1) In what business is your son Leo Hobson now engaged? 
 (2) State to the grand jury where your son Leo is at the present 
 time, and anything you know of his present whereabouts. 
 
 She was brought into open court by the grand jury, and, in 
 the presence of all the 'members thereof and at the request of its 
 foreman, the county attorney informed the court that the witness 
 refused to answer the above questions, and that in the opinion of 
 the grand jury, both interrogatories were important, pertinent, and 
 material to certain matters then under investigation before that 
 body. Nothings v/as disclosed '6y~~Zlae county attorney or grand jury 
 as to the subject or nature of the investigation referred to, and 
 no inquiry v/as made by^^yie ^ cou rt in relatj^ ^ theret^ ^^^ 
 
 Counsel appeared for plaintiff, and objected to the questions 
 on various grounds, among which v/ere that the evidence sought v/as 
 immaterial, not pertinent to any m.atter pending befo re the grand 
 jur-/, and did not tend in any way to prove the ccmm.ission of a 
 criminal offense by Leo Hobson or any* other person, or that evidence 
 as to his whereabouts v/ould tend in any way to aid the jury in 
 its _ invest igat ion of offenses committed within the county of its 
 jurisdiction. The objections were overruled, and the witness dir- 
 ected to answer. Persisting in her refusal tc do so, she was by 
 the court ordered committed to the countv jail until such time as 
 s-:e signified a will ingness _to comply with the order of the court. 
 
 The grand jury is an appendage or constituent rart of the court 
 exercising certain limited powers and duties under its instructions 
 ?nd direction, but also exercising certain other rjowera and duties 
 ••.ndependent and beyond the control of the court. ^ It is its duty 
 to dixigently inquire, and true presentment make, of all offenses 
 commlttea or triable within the county of its jurisdiction, of 
 wnicn It has or can obtain legal evidence. 
 
 5263
 
 The Fir.ci-in/? and Freaentt-t Ion >y the Grand Jury ICl 
 
 Its proceedin'-s are conducted secretly and with the assistance 
 cf the county attorney, r nd it may request, and receive, advice 
 frcn the courts It has no power to compel the attendance of v/it- 
 nepse? or foriunish them for refusing to ansv/er -luesticns pro- 
 T^cunde'd to them. S^utpoenas are issued from the office of t he cl erk 
 t -Id the attendance of witnesses before it may te enforced ty tne 
 -^ourt in the s-ne way as v/it ness served with a sutpoena to testily 
 in any matter pending before it. The power to punish a witness 
 for refusin.-? to testify before a grand jury is, by section 4^61 oi 
 the Cede, conferred upoi\ zhe court. The proceedings in case of tne 
 refusal c^ a witness to testify before that body and the nature 
 of the hearing before the court are set forth in section 5270 of 
 the Code as fellows; 
 
 " ivhen a witness under examination before the grand Jury re- 
 fuses to testify or to answer a question put to him, it shall pro- 
 ceed with the witne!?s into open court, and the foreman snail then 
 distinctly state to the cou^t the question and the refusal of the 
 witness, and if upon hearing the witness the court shall decide 
 that he is ccund to testify or answer the question propounded, he 
 shall inquire of the witness if he persists in his refusal, and, 
 if he does, shall proceed v;ith him as in cases of similar refusal 
 in open cou- 
 
 If will be obser'/erl from the provisions of the foregoing- 
 section that after the v/itness has been brought into court the 
 foreman shall then dit^tinctly state the question or questions pro- 
 pounded tc the v/itness, and inform the court of its refusal to 
 answer the sane; then "if upon hearing the witness, the court shall 
 decide that he is bound to testify or answer the question propound- 
 ed, he shall inquire of the witness, if he persists in his refusal, 
 and, if he dees, shall proceed with him as in cases of similar re- 
 fusal in open court." Technically, the contempt of which the wit- 
 ness is guilty i'j the violation of the authority and dignity cf the 
 court, but cominitted in the presence of the grand jury. The grand 
 jury is the instrumentality by which evidence of the violation of 
 criminal statut-es is obtained and presentment made to the court, 
 and no doubt wide latitude must be allowed it in the exercise of 
 its inquisitorial powers, and its efficiency should not be curbed 
 or circumscribed by technical rules of evidence with which ue!.ibers 
 thereof ordinarilj'- have little or no familiarity. ITeverthel ess, 
 indictments should be founded en legal evidence. S tate v. Tucker, 
 20 Iowa, 508; State v. De Croat e. 122 Iowa, 561, 9S IT. u. 495. The 
 informalities observed in the rules of evidence by grand juries and 
 the wide latitude allov/ed them in the exercise of their inquisitor- 
 ial powers should never be Derm.itted to beccm.e the instru:nent of 
 oppression, or be used for' any other -ourpcre than that of obtaining 
 information as to indictable offenses triable within the county in 
 which the grand jury is sitting, or other lawful purposes, nor 
 snould the witness be his own judge as to whether he will answe- or 
 net. but tne power o-" the co-art ir; ample to -oreyent abuse cf the pre- 
 rogatives cf either grand jury or witness, and to enforce all neces- 
 sary ru^es ic- tne proreT- end efficient performance of the duties of 
 
 5263
 
 Thn Finding and PresenfcRtion by the Grand Juttj 1C2 
 
 of the grand jury. It v/cald, te say the least, te a grave injus- 
 tice to coranit a witness for contempt of cou-^ for refusing to 
 answer questions having no materiality or relationship to any 
 matter pending before it, or fc rming the subject of its investiga- 
 tion. Such evidence is not legal evidence within the meaning of 
 the law. The right of the grand jury to disregard technical rules 
 of evidence in the examinrt ion of witnesses is of no conorolling 
 importance in a proceeding before court to compel a witness to ■ 
 answer questions propounded to thera. Evidence v/hich dees not tend 
 to reveal the commission of some indictable offense, or to identi- 
 fy the offender, or to lead to the discovery of other material and 
 competent evidence, would not be material. The sane technical 
 rules of e-.-idence, so far as practicable, that attain in the trial 
 of causes before the court or a jury should be applied in a pro- 
 ceeding for contempt, and it makes no difference that the offense 
 consists for the refusal to answer questions propounded by, or 
 before, the grand jury. The mat erialty of the evidence sought, no 
 doubt, may often be apparent from the form and substance of the 
 question asked, but unless this is true the court should inquire 
 sufficiently into* the proceedings of the grand jury to determine 
 whether t he^^^rrness has declined to testify to material matters. 
 "Rogers V. Superior Court of City & Co unty of Sa n Francisco, 145 
 Cal . 88, 78 Pac . 344; In re Arcner, rS^MicHTTo 8, 96 N. »7.4?2. 
 
 It islrue that by specific statutory enactment the proceed- 
 ings o'f the grand jury are conducted in secrecy. The reasons 
 therefor are apparent from the nature cf the duties performed 
 thereby. it \fauid often defeat the very purpose of the inquiry 
 if public revelation was made of the particular offense being 
 investigated, but sufficient information may be imparted to the 
 court and made cf record in proceedings of this character, to en- 
 able it to determine the materiality and legality of the evidence 
 sought, without violating either the statute or public policy 
 upon v/hich itis_b as ed. Proceedings of this character are held 
 in this sta:r^to be in their natJire__sj:lir,xr3^1^_jix_ciuasi_JiTiniri^l, 
 and a clear case of contempt must be shown by the evidence where 
 it i_s_^equired. R ussell v . .anderson. 141 Iowa, 533, 120 IJ. W. 89; 
 Caj:r V. Distri ct Court. 14? lowa. 6^3 126 II. ,V. 791, Ann. Cas . 
 1913 D, 378; y/ elTs v. Di strict Gt . of polk County. 126 Iowa, 340, 
 102 i\^ n. 106; Tu ttle v. Hutchison, 173 Iowa, 50 3, 151 II, «,'. 845. 
 The refusal of the v;itness upon which the rirosecuticn is based was 
 to answer questions in the presence of the" grand jury, and not of 
 tne court, and while, as stated, the offense is technicallv 
 against the authority cf the court, it was not committed in" the 
 actual presence thereof. 
 
 The_ quest ions propounded to the plaintiff may have been intend- 
 ed to elicit evidence important and material to some matter properly 
 under investigation by the grand jury, but such materiality clearly 
 
 thf aM°.L~^^r "^.^^P^^LJf£ t"-V^-^ 1^"^ ther eof. If. for example, 
 -4oVc,on 1 1 ^^^^^t-n^-ttr-tr^re-TTrst question had been that Leo 
 Hobson ^as engaged in the dv^r goods business at Tipton, Iowa or if 
 
 5263
 
 The binding ani Ires 19 ??t at ion by the Grand Jury IC 3 
 
 in snawer to the second question, she had stated that Lee Hotson^ 
 was residing in Kalamazoo, it is hardly conceivable that such evi- 
 dence y/ould have been material, i^efc^re ordering_ the witn fess com- 
 mitted to jail^cxi^contex!i^tj^_jUl^~^oj^iT^^lhc\^^ 
 
 g m^Hjufy: t o ma-k-e-- s4if:fT3"i ent slio-w lng to 6 n ? ^ V 1, p it .jL P' say thayi he 
 quest ions_..w_er-fi-P^rop^r, and' that they soup:ht to el i c it mat en ai and 
 important information. Rogers v. Superior Court , supra; In re 
 Archer, supra. 
 
 The jurisdiction of the grand jury before which plaint if.f 
 was summoned was limited to Linn county, and while it is conceivable 
 that the examination might have resulted in eliciting information 
 tending to show that Leo Hobson was engaged in an unlawful ousiiiess 
 in. Linn county, or that his whereabouts might bear such relation 
 to other facts, or circumstances, as to have an important bearing 
 upon the v^uestion of his. ov;n or the guilt of some other offender 
 punishable in Linn county, the record before us does not so show. 
 
 The evidence i.i a proceeding to punish a recalcitrant witness 
 for contempt must show affirmatively that he had refused to give 
 legal evidence in a trial before the court or before some other 
 court or tribunal having a right to demand the same. 
 
 Sectio*h 4466, Code of 1897, requires that where the action of 
 the court is founded upon evidence given by others it must be 
 reduced to writing, filed, and preserved, and if the court acts 
 upon personal knowledge, a statement of the facts upon whic^^i the 
 order is founded must be entered on the record of the court, or 
 be filed and preserved when the court keeps no record. The court 
 could not determine the materiality of the evidence sought without 
 a showing of the facts v/hich should have been made of record. 
 
 It is the conclusion of the court that the record before us 
 does not sustain the cji^Mx..-CLf_jLiie_£^Mrt - b el o v/, ^ i r ect i ng that 
 plaintiff be committed to the county jail until such time as she 
 expressed a 7/illingness to answer the above questions, and is 
 therefore annulled. 
 
 526 3
 
 1 
 
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 (Q 
 
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