Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1907-04-03

With Practically Little or No Grim.
inal Business to consider-Cases
That Arc Affected. 80,
Judge C. b. Bradshaw, in the district
court today, sustained the motion of
the defense in the case of state vs..
w. H. wulke, J,'., and ordered the
defendant discharged on the. ground
that names OF four members OF the
grand jury were not certified to uponl
being returned as eligible for jury duty.
Wulke Is the Melbourne man indicted
with A. Sanderman, also Of Melbourne.
for selling liquor without license.
Judge Bradshaw's decision In the
Wulke case will undoubtedly be made
to apply to almost every other. defend
ant indicted by the grand juries OF the
present year. The courts order was to
the effect that the defendant be dis
charged; his bond eNonerated, and his
slireties released, to which the plain
tiff excerpts.
The courts opinion was decidedly
luminous. 1t did not include as a
reason for vitiating the acts of the
grand jury the fact that members of
election boards were members of the
grand Jury, but only because the names
Of four other members were not certi-
fed to. The court attached no blame
to any one for the act that is SEEM
~ xI&< tat RAJ
In prefacing his opinion proper Judge
Bradshaw recalled that other Iowa
Judges had held that jury lists were
invalid mainly, IL not altogether, be-
cause members had acted as Judges
and clerks OF election. and had returned
their names as members OF juries. II
all in the Wulke case, the court ex-
planned were the names of Nyce. OF
Iowa, ard Lampman, OF Linn, who had
been drawn on the regular panel as
members of the Jury, after having
served as election clerks, he would not
consider the jury's acts as invalid. I'm
der the evidence, as testified to by both
Nyce and Lampman, they hads not re-
quested that their names be put on, ana
that one had even objected to being
returned for jury duty.
There were four. others, however, the
court explained, whose names had not
been certified to. The state commended.
in it's argument, that no certificate OF
names had been required by any former
statute. and was not required IN this
one. i.I have concluded" the court add
ed. athat there always has been re-
ouired q certificate of the judges OF
~ h
complete. No name of a person VINO
has requested either directly OF indi-
rectly that his name be on the list IS
allowed to serve.
"In the case OF Hugh Mcconnell, OF
Marshall, no certificate was made to
the return to the auditor, certifying the
fact required by the statute. No GER
tificate was signed aof that kind The
same is true OF j. q. Harvey, of Lee
Grand; w. Il. Preston, of Logan; w
II. G. woodward. foreman, OF Marietta.
making, not counting the two clerks,
four out OF the seven to which that
provision of the statute was not con-
formed.
"If these names had been certified to,
as required, would have been disposed
to overrule this motion, altho other
Judges have held that even to return
Judges and clerks vitiates indictments 7
Can Sec How May Have Happened.
Judge Bradshaw stated that he could
easily understand how such things
might have happened. The polls open
early; there is much interest In the
election. The judges are busy all day
and finally some one remembers that
they must make up a jury list. 1t Is
hard to think Of the names. Some one
saws. .'put the clerk on" another, put
the Judge on" ut can not be said,''
court added, chat any of these judges
or clerks wilfully neglected to conform
to this statute, and I don't think, II 1t
was examined all the way thru, there
could be found any ground to upbraid
or censured judges or clerks for allow
ing their names to be put on, but at
the same time under the present stat
ute 1t is of doubtful legality.
'In regard to putting names on the
list and not certifying to the fact that
they had directly or indirectly re-
quested It, it was probably an over
grand jury, majority, that found this
lllOlCCII1SlL, WHO are IiOC CeIllASus SAo
u realize the question now, as indi-
Gated by the decisions of the supreme
court: Has the statute been substan-
TALLY complied with or not?' If 1t has
the irregularity does not vitiate the
act.
Set Out TO Sustain.
IT set out in this case to sustain the
indictments, that is, proposed to sus-
tain them if could In my view of the
statute. which 1 think is mandatory,
there is a special provision as to what
shall be certified to. 1t is not quite true
that only negative words are considered
mandatory. Not only shall. which may
be transposed by the court dnto the
word may, in cases where special
duty is required, may be mandatory,
and this says shall certify. I think
my safe way is to hold that it can
not be ignored. or that we can absolute
ly disregard it. shall not feel at all
embarras sed or Inundated, If the SUI
preme court should take a different
view.
Another Thing to Consider.
"There is another thing to be con-
n. perfect malt BY the ia
W d..