#### State of Iowa, Appellant, v. Harry C. De Groate.

Indictment: setting aside. An indiotment should not he set aside simply because the wife of defendant was a witness before the grand jury.

*Appeal from Dallas District Court.-*— Eon. James D. Gamble,. Judge.

Tuesday, February 9, 1904.

AN indictment was returned, charging the defendant with the crime of assault with intent to murder. He filed *662a motion to set it aside for tbe reason tbat it was found, in whole or in part, 'upon tbe testimony of bis wife. Tbe motion was sustained, and tbe defendant - was discharged, state *appeals.*

Reversed.

*Chas. W. Mullan,*Attorney General, and *Lawrence De Graff,*Assistant Attorney General, for tbe State.

No appearance for appellee.

SheewiN, J.

Tbe defendant’s wife was a witness against him before tbe grand jury, and because of this fact the trial court set tbe indictment aside. There was ample evidence to justify tbe finding of tbe indictment, aside from tbe testimony of the wife, and tbe sole question for our determination is whether tbe trial court correctly ruled on tbe motion. We think there are two sufficient reasons for bolding tbat it did not: In tbe first place, section 5319 of tbe Code enumerates tbe causes for which an indictment may be set aside, and we have repeatedly held tbat they are exclusive of all others. *State of Iowa v. Baughman,*111 Iowa, 71; *State v. Easton,*113 Iowa, 516; *State v. Phillips,*118 Iowa, 660; *State v. Smith,*74 Iowa, 580; *State v. Tucker,*20 Iowa, 508. Again, while it is tbe general rule tbat an indictment must be founded on legal evidence, it is also tbe general rule tbat tbe incompeteney of one of several witnesses will not sustain a motion to quash tbe indictment, “since it cannot be shown what weight, if any, tbe testimony of this one bad with tbe grand jury.” Tbe trial and proceedings in tbe grand jury room are always *ex parte,*unless tbe grand jury shall see fit to make them otherwise; and tbe law does not contemplate a strictly judicial trial before tbat body, and, indeed, it would be impossible to conduct their investigations of crime along such lines. Tbe jurors are drawn from tbe body of tbe county, and are usually without special experience in tbe work they are called upon to do in tbe jury room. As Avas said in *State v. Tucker, supra:*“Whether Avitnesses are competent is often a very difficult question- of law, and to bold tbat if tbe grand jury, in the course of their investigation, *663happen to examine an incompetent witness, that this will bare the effect to vitiate their finding, is going a step further than we are prepared to take.” We still think this position sound, for, if it be held that every indictment not founded entirely on legal and competent evidence is bad it necessarily follows that in all cases where the witnesses are incompetent, and in all cases where an essential link in the testimony is sustained by incompetent testimony, the indictment must be quashed. The general rule seems to be “that the court cannot inquire into the sufficiency of the proof, or the mode of examining the witnesses, to invalidate the indictment.” Bishop on Criminal Procedure, section 872; *Stewart v. State,*24 Ind. 142; *Creek v.*State, 24 Ind. 151; *United States v. Reed,*2. Blatchf. 435, Fed. Cas. No. 16,134; *State v. Burlingham,*15 Me. 104. And see *State v. Fowler,*52 Iowa, 103.

The record, as amended,- shows a judgment of dismissal, and the motion to dismiss the appeal is overruled. The judgment is reversed, and the case remanded. — Revebsed.