#### State of Iowa, Appellee, v. W. B. C. Bullard, Appellant.

Grand jury: competency: resubmission of charge. On resubmission of a charge to the grand jury after .the setting aside of an' indictment, where it appears from an examination of the jurors that several were members of the jury which returned the original indictment, and they stated that they had formed and expressed an opinion as to defendant’s guilt which they still retained, that if the same evidence was again presented they would return an indictment, and were they called to sit as petit jurors they would vote to convict the defendant on the same evidence, such jurors are incompetent under Code, section 5343, although they also state that they have no prejudice or bias against the accused and that their opinions would not prevent them from giving an impartial consideration of the evidence and rendering a true finding thereon.

*Appeal from Glay District Court.*— ■ HoN. W. B. Quaetoh, Judge.

Tuesday, April 4, 1905.

*169The defendant was indicted for obtaining property under false pretense. Trial being bad, be was convicted, and from tbe judgment entered be appeals.

*Reversed.*

Spurrier, *Fortes & Mills*and *Gory &*Bemis, for appellant.

*Ohas. W.*Mullan, Attorney-General, and *Lawrence De*Graff^ Assistant Attorney-General, for tbe State,

Bishop, J.

Tbe record before us makes it appear that tbe defendant was indicted in tbe Clay county district court at tbe April, 1903, term thereof, the offense charged being obtaining property by false pretense. At the September term, 1903, and tbe defendant being present, tbe prosecution moved to set aside tbe indictment so found at the previous term, and that tbe charge against tbe defendant be resubmitted to tbe grand jury. Over tbe objection of defendant, tbe motion was sustained, following which tbe grand jury was called into open court, and tbe defendant given opportunity to examine and challenge for cause. Thereupon the persons appearing as grand jurors were examined by counsel for defendant, and of tbe seven called six answered that they bad sat as a member of tbe grand jury which at tbe April term bad voted and returned an indictment against tbe defendant charging him with having obtained property of one J. D. Carson by false pretense. Each of tbe six men answered that evidence in respect of tbe facts connected with the offense of which defendant was accused was taken before tbe grand jury and considered, and each severally answered that from such evidence he formed an opinion as to tbe guilt of the defendant, which be then expressed, and, based thereon, be voted to return an indictment. Each answered also that tbe opinion then formed still remained with him, and that, if the same evidence was again submitted to him as a grand juror, he would *170for tbe second time vote for an indictment; also that, bad be been called upon to sit as a petit juror, be would vote to find tbe defendant guilty upon tbe evidence produced before tbe grand jury. Answering questions propounded by the court, each said that be bad no bias or prejudice against tbe defendant, and that tbe opinion be' then bad would not prevent bim from rendering a true finding upon tbe evidence to be brought forward upon a resubmission, and that he could give impartial consideration to such evidence. Tbe defendant challenged severally tbe jurors called, and in each instance tbe challenge was overruled. Tbe seventh juror called answered that be bad no knowledge of tbe case, and as to bim there was no challenge. Tbe grand jury thus composed was sworn, and at said term of court returned an indictment against tbe defendant charging that be did on June 29, 1901, obtain property, describing it, from one J. D. Carson, by false pretense. Under such indictment trial was bad, resulting in tbe judgment here appealed from.

We are not advised as to tbe cause for setting aside tbe indictment first found, nor do we think such to be material. Upon tbe entry of tbe order tbe case then stood as though no presentment bad ever been made, and, accordingly, the defendant became possessed of the full right of challenge, to be exercised when thereafter it was sought to resubmit bis case to tbe grand jury. Code, section 5243; *State v.*Gillick, 7 Iowa, 287; *State v.*Osborne, 61 Iowa, 330. This right, as we have seen, was not denied to defendant. Tbe entire controversy arises out of *the*rulings of tbe court in respect of tbe challenges interposed by tbe defendant to the several veniremen called to make up tbe grand jury. It is tbe statute (Code, section 5243) that a challenge to an individual grand juror may be made by tbe defendant when it appears that be has “ formed or expressed such an opinion as to tbe guilt or innocence of tbe accused as would prevent bim from rendering a true verdict upon tbe evidence submitted on the trial.” Tbe effect of tbe provision, as we *171understand it, is that a challenge to a grand juror must be allowed if his answers disclose that by reason of an opinion formed or expressed by him he would be an unfit person to sit upon a petit jury called in for the trial of the case after indictment found. In other words, an opinion as to guilt which would disqualify a petit juryman will disqualify a grand juryman. This was the rule announced by Marshall, C. J., on the trial of Aaron Burr, and this court in direct terms committed itself thereto in *State v. Gillick, supra.*See, also, *State v.*Osborne, *supra.*The cases cited are authority also for the proposition that it is no answer to the challenge to a grand juryman that his opinion had been formed solely upon the evidence given before the grand jury and upon which the former indictment was found. In the Gillick Case it was said: *“*When the jury were brought into court in order that he [the accused] might exercise this right, they stood in the same relation to him as if they had not been impaneled and sworn. The jurors must stand indifferent to him, as they stand unsworn. His right to an impartial jury is as unconditional as his right to any jury at all. The juror challenged was as much disqualified * * * by reason of the opinion formed by him from the evidence given under oath in the grand jury room, and by his action thereon, as if that opinion had been formed from rumor, or had been induced by malice or ill will. It is the preconceived opinion that renders him incompetent, and not the sources from which that opinion is formed or derived.” In the Osborne Case it was said that a grand juror whose opinion of guilt was derived from the evidence upon which a former indictment was based is in no different position than as though he had been upon a coroner’s jury, or upon a jury before whom an accomplice had been tried. And it mighf have been added that his relation to the case was not unlike that of a petit juryman who is again called after a verdict of guilt in which he took part has been set aside and a new *172trial awarded. No one will claim that under such circumstances the right of challenge does not exist.

In the instant case it will be observed that each of the six veniremen called to answer as to his qualifications de-' dared not only that he entertained an opinion as to the guilt of the defendant, but that should he sit as a member of the jury upon resubmission, and the same evidence being again brought forward, he would vote for an indictment. To our minds the jurors were clearly incompetent and the several challenges should have been sustained. We need not stop for a discussion of the subject in general. It was gone over at length in the recent cases of *State v.*Crofford, 121 Iowa, 395, and *State v. John,*124 Iowa, 230, to which the reader is referred. Suffice it to' say that, as a result of the rulings upon the challenges made — and this must be apparent to all — a grand jury was made up of men, with one exception, who went out not to deliberate, but to vote another indictment, conditioned only upon there being again submitted the evidence upon which the former presentment was predicated. In the face of a situation thus appearing by frank confession, the fact that the jurors have no bias or prejudice against the accused is a matter of no moment whatever. Their unfitness is established by their belief in his guilt, and their declaration that, given opportunity, they will upon the same evidence again vote for an indictment. It may be that a grand jury composed in its entirety of men who had no information or belief upon the subject of the guilt of the accused would have voted to indict upon the evidence when presented as readily as did the jury in fact impaneled. But there was the chance that the charge might be ignored, and the statute gave to the defendant the right to have the benefit of that chance. We hold, therefore, that the indictment* upon which the defendant was tried was not found by a grand jury legally ’ impaneled and sworn. In view of this conclusion we need not give attention to any of *173tbe other matters of error presented by the record.— *Reversed.*