State v. Axt , 1858 Iowa Sup. LEXIS 161 ( 1858 )

Stockton, J.

— We do not think that such an indorsement was essential to the validity of the indictment, or that the want of it, was a good reason for quashing it. The Code, (section 2914), requires that “ an indictment, when found by the grand jury, and indorsed £a true bill,’ by the foreman, must be presented to the court by the foreman, in their presence, and marked £ filed,’ by the clerk.” Under a provision somewhat similar, in the act of 1839, (Rev. Stat. ,152, section 34), it was held by this court, in the case of The State v. Glover, 3 G. Greene, 249, that the omission of the clerk to indorse upon the indictment, that it was presented in open court by the foreman, in the presence of the grand jury, was fatal to the proceeding, and that the indictment should have been quashed. There is this difference, however, between the act of 1839 and the Code, by which the present cause must be decided, that while the former contains no such provision, it is expressly provided by the latter, under the head of “forms and requisites of indictments,” (section 2916), that no indictment shall be quashed, if it can be understood: “ 1. That the same was presented to some court having jurisdiction of the offense charged.” * * “ 8. That the indictment is indorsed ‘ a true bill,’ by the foreman, and marked ‘ filed,’ by the clerk.”

It sufficiently appears by the indorsement made by the clerk, that it was presented to the district court — a court having jurisdiction of the offense charged. In order that it should so appear, it was not indispensably necessary that the clerk should further indorse, that the indictment was “presented to the court by the foreman, in the presence of the grand jury.” This provision of the statute is directory merely, and the failure of the clerk to make the indorsement, is not sufficient to invalidate the proceeding. We think the requisites prescribed by section 2916, sufficiently appear by the indorsements on this indictment. In this view of the subject, it is unnecessary for us to inquire, whether the district court erred in directing the clerk to insert in the indorsement on the indictment, the words wanting to make it conform to the requisites prescribed by section 2914 of the Code.

Under the act of January 22, 1855, section 6, 61, any person selling intoxicating liquors, as charged in the indictment, is deemed guilty of misdemeanor ; and upon a first conviction shall pay a fine of twenty dollars and costs of prosecution, and shall stand committed ten days, unless the same be sooner paid. Although the constitution provicies, that “all offenses less than felony, and in which the punishment does not exceed a fine of one hundred dollars, or imprisonment for thirty days, shall be tried summarily before a justice of the peace, or other officer authorized by law, on information under oath, without indictment, or the intervention of a grand jury, (Art. 1, section 11); yet it is further provided by the same instrument, that “ all offenses, misdemeanors and crimes that may have been committed before the taking effect of this constitution, shall be subject to trial and punishment in the same manner as they would have been had not the constitution been made. Art. 12, section 8. The offense, in this instance, is charged to have been committed on the first day of September, 1857, which was before the taking effect of the present constitution. The district court had, therefore, jurisdiction of the offense, and the demurrer was properly overruled.

The views above expressed, we believe, dispose of all the errors assigned, and the judgment will be affirmed.