
    State of Iowa v. George H. Scott, Appellant.
    Former Jeopardy: quashing indictment: Construction of statute. A discharge from an indictment, on a motion to quash, because the grand jury was not apportioned, selected, or drawn as provided by law, is not a bar to a prosecution under another indictment for the same offense, under Code, section 4344, providing that an order to set aside the indictment because the grand jury was not properly selected, shall be no bar to a further prosecution, although section 4342 provides, that if the motion is granted, the defendant must be “discharged,” his bail exonerated, or money deposited, refunded to him, unless the court direct the case to be remitted to the same, or another grand jury. It is not a fair construction of said statutes to say that setting aside the indictment, is a bar unless a resubmission is ordered.
    
      Appeal from Calhoun District Court. — Hon. S. M. Elwood, Judge.
    Friday, October 9, 1896.
    Defendant was convicted of the crime of keeping a liquor nuisance, and appeals.
    
    Affirmed.
    
      M. B. & Brown McCrary for appellant.
    
      Milton Bemley, attorney general, and Jesse A. Miller for the state.
   Deemer, J.

At the regular February, 1895, term of the district court of Calhoun county, the grand jury returned an indictment against the defendant for the crime of maintaining a liquor nuisance. Defendant was arrested on bench warrant, and appeared, and moved to set aside and quash the indictment, for the reason that the grand jury was not apportioned, selected, or drawn as provided by law. This motion was sustained. Thereupon a new grand jury was selected, and they on the eighth day of March, 1895, returned another indictment against the defendant for the same offense. Defendant was tried and convicted on this second indictment. His plea was a former acquittal of the offense, by reason of the proceedings had upon the first indictment. The court directed the jury that this did not constitute a good plea in bar, and of this defendant complains. The single question presented is whether the discharge of the defendant from the first indictment, on his motion to quash and set it aside, constitutes such former-jeopardy as to entitle him to an acquittal on the second presentment.

The defendant relies upon the case of State v. Manley, 68 Iowa, 844 (19 N. W. Rep. 211). It is clear, however, that this case does not touch the question here presented. The defendant also cites sections 4342, 4357 and 4619 of the Code. An examination of these citations discloses nothing touching the question presented. There is one section of the Code, however, that does seem to have some bearing. It is section 4344. This reads: “An order to set aside the indictment as provided in this chapter [the chapter relating to motions to set aside because the grand jury was not properly selected] shall be no bar to a further prosecution for the same offense.” This chapter would be conclusive were it not for the fact that we find in the same chapter of the Code this further provision: “If the motion be granted, the court must order the defendant, if in custody, to be discharged, or, if admitted to bail, that his bail be exonerated; or, if he has deposited money instead of bail, that the money deposited be refunded to him, unless the court direct that the case be re-submitted to the same or another grandjury.” Section 4342. The contention of counsel seems to be that, unless the court orders the case re-submitted, the setting aside of the indictment is a bar to a further prosecution for the same offense. This is a strained and unnatural construction of the statute. It simply directs what order shall be made by one court in the event he does not direct a re-submission of the case, and has no relation whatever to the effect to be given to the order of discharge. The statute was manifestly enacted in order that the court might, if it saw fit, direct that the defendant be held in custody, or that the bail be continued in force until the same or another grand jury might consider defendant’s case. Without it, the defendant would be entitled to his discharge and a release of his bondj as soon as the order was entered, sustaining the motion. This would give him an opportunity to escape or flee the country before another indictment could be returned. For this reason the statute was enacted, and it is manifest, it has no bearing whatever upon the question of former jeopardy. The same, or another grand jury, had the right to consider the defendant’s case, and it was of no consequence, that he had been discharged and his bail exonerated on motion to set aside the former indictment. The following cases are in line with our conclusions: State v. Smith, 88 Iowa, 721 (55 N. W. Rep. 198); State v. Clark, 69 Iowa, 196 (28 N. W. Rep. 587); State v. Redman, 17 Iowa, 329; State v. Arthur, 21 Iowa, 822. The case of State v. Collis, 78 Iowa, 542 (35 N. W. Rep. 625), is directly in point oh the proposition, that the second grand jury was authorized to consider the defendant’s case without a re-submission of it by the court. If there were nothing in our Code with reference to the subject, the authorities are uniform, that a discharge of a defendant, on his motion to quash or set aside an indictment, is not such former jeopardy as to entitle him to an acquittal on a second presentment for the same offense. Finley v. State, 61 Ala. 201; State v. Sherburne, 58 N. H. 585; Bedee v. People, 78 Ill. 320; State v. Priebnow (Neb.) (19 N. W. Rep. 628); 1 Bishop Cr. Law, section 1021. The instructions given by the court were correct, and the judgment is affirmed.  