
    State of Iowa, Appellant, v. Wm. C. Anderson.
    1 Grand jurors: qualification: request to serve. Under the statute prohibiting the return of names by an election board of persons to'act as grand jurors who have directly or indirectly requested-a return of their names, the practice of returning the names of members of the board is to be condemned, but in the instant case only two members of the grand jury were members of the election board, and their names were returned against their express wish, so that the objection to the indictment on that ground should have been overruled.
    2 Adultery: sufficiency of indictment. An indictment charging that defendant committed the crime of adultery with a certain person, she being at the time a married woman, the wife -of a certain person, and that defendant was an unmarried man, was a compliance with the statute requiring an offense to be stated in ordinary and concise language.
    3 Same. Intercourse between persons not husband and wife, one or both of whom is married constitutes adultery, and it is not necessary to allege that the act was done knowingly, wilfully, maliciously or feloniously, or that the prosecution was commenced on the complaint of the husband or wife.
    
      Appeal from ATlamalcee District Court. — Hon. A. N. Hobson, Judge.
    Tuesday, December 15, 1908.
    An indictment charging the defendant with the crime of' adultery was set aside on his motion, and he was discharged. The State appeals. —
    Reversed and remanded.
    
    
      H. W. Byers, Attorney General, and Chas. W. Lyon, Assistant Attorney General, for the State.
    
      William C. Anderson, for appellee.
   Sherwin, J.

— One of the grand jurors serving at the time the indictment was found and returned was one of the judges of the election in Ludlow township, and another grand juror was clerk of the election board of Linton township. The motion assailed the indictment on the ground that these two- members of the grand jury had been illegally and unlawfully selected by the election boards of which they were members and were incompetent to act as grand jurors under the provisions of section 337 of 'the Code Supplement of 1902,. The section, so far as the same is material to the question before us is in the language following: “Such lists shall be composed only of persons competent and qualified to serve as jurors; and the judges of election or boards of supervisors shall omit from said lists the name of any person who has served as a grand or petit juror in any court of record-since January first preceding. And if the name of any such person is returned, the fact that he has requested to be so returned, or has served as such juror in a court of record during the jury year, as defined in this chapter, shall be a ground for challenge for cause. The members of the election board or the board of supervisors when certifying to such lists shall state that the lists do not contain the name of any person who requested, directly or indirectly, that his name appear thereon.” Under this section, if the name of any person is returned at his request, it is a ground for challenge for cause. The plainly expressed intent of the statute is to exclude from service as a grand juror any person who shall directly or indirectly seek such service. The provision is a wise one for many reasons.

It is essential to the due administration of justice that criminal charges be investigated and tried by impartial triors, and this requirement may be entirely swept away if the grand jury may be composed of men who have sought to become members thereof. Nor do we deem it necessary to constitute a ground for challenge that the juror has expressly requested that his name be placed on the list returned. In our judgment it is enough if his language is fairly open to such construction. In this case it appears that in some instances the names of all of the members of the election board were placed on the list and returned as qualified jurors. While such action may be possible without a violation of the statute under consideration, it at once creates the impression that such names have been returned by mutual agreement or acquiescence which in law would amount to a request, and such practice is to be condemned; but the grand jury that returned the indictment against this defendant had but two men serving thereon who were members of election boards, and they were from different townships, and each testified, in substance, that his name was placed on the list and returned against his expressed wish to the contrary. If this be true, and it must so be considered from the record before us, neither the letter nor the spirit of the statute was violated, and the motion, so far as it was based on that ground, should have been overruled. Goldthorp v. Goldthorp, 115 Iowa, 433.

Other grounds of the motion were that the indictment failed to charge a crime, that it failed to state that the woman involved in the charge was a married woman, that the indictment failed to allege that the defendant “knowingly, willfully, maliciously or feloniously committed the crime,” and that it did not show on its face that the prosecution was commenced by the husband or wife as required by law. The indictment charged that the crime was committed with “Alice E. Carver, she being at the time a married woman, to wit, the wife of one George H. Carver,” and it further charged that the defendant was at the time an unmarried man. Code, section 5280, requires only that an indictment “contain a statement of the facts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.”

The indictment clearly complied with the requirements of the statute, and the defendant could not fail to understand the charge. An allegation that the crime was committed within the period of limitation • was sufficient, without charging specific acts. Sexual intercourse between two persons not husband midwife, either one or both of whom.are married, constitutes adultery under the statute, and it is not necessary to charge that the act was done “knowingly, willfully, maliciously or feloniously.” Slate v. Qriffin, 79 Iowa, 568; State v. Hutchinson, 95 Iowa, 566. 'Nor is it necessary -to allege in the indictment that the prosecution was commenced on the complaint of the husband or wife. State v. Andrews, 95 Iowa, 451; Stale v. Ilarmonn, 135 Iowa, 167.

The court erred in setting aside the indictment and in discharging the defendant. The case is therefore reversed and remanded.  