#### State of Iowa v. J. E. McPherson, Appellant.

1 Burglary: objection to grand jury: waiver. A defendant held to answer before the return of an indictment who fails to appear and challenge the grand jury, although at an adjourned term, waives any objection to the selection and drawing of the jury.

2 Burglary: evidence. In a prosecution for burglary, evidence examined and held to sustain a verdict of guilty.

*Appeal from Page District*Court.— TIon. W. R. Green, Judge.

Wednesday, December 14, 1904.

The defendant was convicted of the crime of, burglary, and *appeals.*—

•Affirmed.

*W. P. Ferguson*and *Earl R. Ferguson,*for appellant.

*Charles*W. *Mullan,*Attorney-General, and *Lawrence De Qraff,*Assistant Attorney-General, for the State.

Ladd, J. — ■

1. Objection togrand jury: The accused was arrested on preliminary information, and being held to answer at the next term of the district court, convening December 8, 1903, was released upon the execution of an appearance bond. An order had been entered by the presiding judge, postponing that term until January 5, 1904, because of sickness. At the convening of the court the grand jurors drawn in 1903 appeared, and from these the grand jury which returned the indictment was selected and impaneled. The defendant, though called, failed to appear, and was held to “ have waived all objections to the grand jury.” The indictment was returned January 13, 1904, and on the 24th day of February, the defendant moved that it be set aside on the ground that the period during which' the *78jurors composing the grand jury might serve as such had expired January 1st previous to the finding of the indictment. Authority to postpone the terpi is conferred on the judge who is to preside by section 235 of the Code, and under the provisions of section 237 the defendant was required to appear at the adjourned term. The opportunity of challenging the panel was open to him at that time, and by failing to exercise the right he waived all objection to the selection and drawing of the jury. Sections 5321, -5241, Code; *State v.*Ingalls, 17 Iowa, 8; *State v. Dixon,*3 Iowa, 416. Having waived the irregularity, if any there was, it is scarcely necessary to add that he was not in a situation to avail himself of it as aground of a motion in arrest of judgment. It must not be inferred that we regard the point raised as well taken. But for some slight changes in the language of the statutes *State v.*Winebrenner, 67 Iowa, 230, is an authority to the contrary. All we now hold is-that appellant, having waived the objection, could not urge it after the return of the indictment.

2. Burglary: evidence. II. That some one removed two lights and the crossbar from the back window of Iluldah Ohlssen’s millinery store in Essex, leaving an open space 12% by 28 inches, is put beyond doubt by the evidence. She had bolted the doors and nailed down the windows, and covered the latter with boards before leaving in July, and upon her return in December she found the window as stated, the bolt removed from the back door, and the latch turned, Considerable ribbon had been taken; also a jewelry case with some jewelry. Some silk mittens, ties, velvet ribbons, and, plumes had been taken -from the places where she had left them and packed in a pasteboard box and put on an empty shelf. The defendant owned the adjoining building, and in connection with George Haepner, had been operating a restaurant there from March until the fore part of December. They were succeeded by one Priest for a few days, and then by Conrad, who con*79ducted a shooting gallery therein. About the middle of the month Conrad found a lady’s astrakhan cap in a box at the back end of the building. This belonged to Huldah Ohlssen, and had been left in her store when closed in July previous. One Tutt orally leased the building of defendant in December (and subsequently turned it over to Conrad), and upon his return to Shenandoah had a talk with the defendant, who, according -to T'utt’s testimony, said, There was another graft close to, me that could be worked ”— a millinery stock; that there Was some money in it; that he had been in the building, and had a box of goods over in their place; that “ we had a box of goods in the place, and George’s heart failed him, and we took it back.-” The defendant admitted telling Tutt that the back door of the millinery store was unlocked, but otherwise denied having made the statements, lie admitted that two boxes, one with the cap in it, had been in their restaurant, but testified that Haepner had confessed having entered the store and taken them, and had, on his advice, promised to return them. He denied all connection with the crime, and declared that, as he was. a large man, weighing two hundred and twenty-six pounds, he could not have entered through the space left in the window, We have set out the evidence somewhat in detail, because appellant relies 'mainly on its insufficiency for a reversal. We think it was enough to have carried the case to the jury. If Tutt told tho truth as the jury must have thought, the defendant admitted having been in the store, and this under circumstances indicating that it happened during the absence of the proprietor; also that he was interested with Haepner in the possession of the box of goods taken therefrom. Other evidence tended to show that he could have gone through the window; but, even were this impossible, he might, for all that appears, have entered by opening the door. Whether he broke and entered, or aided and abetted Haepner so to do, was for the jury to determine, and we are not inclined to interfere with its conclusion. The evidence was such as to *80call for an instruction as to whether he was guilty of aiding and abetting another in the commission of a crime. The ruling respecting a conversation of one Preston with Haepner about shipping two trunks of the latter to Red Oak were proper, as the relevancy of the testimony was not disclosed by the interrogatories or *otherwise.*— Affirmed.