Aultman, Miller & Co. v. McGrady.

gaged was free from the liens thereof. The judgments had not, in fact, been satisfied, and the court below so held; but it held also that by reason of the return made upon the execution, and the entry made by the clerk, the judgments appeared to be satisfied at the time the mortgage was executed, and so the mortgage had in equity become paramount to the lien of the judgments; and decree was entered accordingly. The plaintiffs appeal.

Wilbur & Sherwin, Glass & Hughes and J. T. Lattimore, for appellants.

Bush & Hurn, for appellees.

1. EXECUTION: Satis

return.

ADAMS, J.-A return upon execution is evidence only of what can properly be embraced in a return. A return showing that the judgment has been satisfied by the faction of judgment defendant is not evidence of such fact. Abercrombie v. Chandler, 9 Ala., 625. A return upon execution should be a statement of what is done by the officer in obedience to the writ. The provision of statute in relation thereto is in these words: "The officer to whom an execution is legally issued shall indorse thereon the day and hour when he received it, and the levy, sale, or other act done by virtue thereof, with the date, and the dates and amounts of any receipts or payments in satisfaction thereof." Code, $3038. There is no provision for a return showing the acts of any one but the officer. A statement in the return purporting to show the acts of some one other than the officer is without authority of law and surplusage. Gilchrist v. Bank, 11 Ala., 408, and McKeag v. Callehan, 13 Ala., 828. We ought perhaps to say that if a return is of doubtful meaning, courts are inclined to so construe it that it will show that the officer did his duty. Whittlesby v. Starr, 8 Conn., 134. So it has been said that the single word "satisfied," indorsed upon the execution and signed by the officer, should be construed as meaning that the officer has made the entire

Aultman, Miller & Co. v. McGrady.

amount of the execution. Herman on Executions, 379. The word "satisfied" is embraced in the return in question, but the whole return taken together clearly precludes the idea that the officer had made any part of the execution. Indeed, it is not claimed by defendant that the return, taken as a whole, showed that the execution was satisfied. Their claim is that the return showed that the judgments were satisfied. The debt, of course, was not satisfied. The fact that security was taken showed that. But the defendant mortgagee says that the return shows that the security was taken for " the moneys," which should be considered as indicating that the parties understood that the plaintiff's claim was no longer evidenced by the judgments.

We do not care to go into an examination of the language of the return, for the purpose of determining what it shows in regard to the agreement or understanding of the parties. If it showed anything in that respect, it showed something not provided for by law, and the defendant mortgagee was not justified in relying upon it.

We do not say that where an execution is returned unsatisfied by order of the plaintiff, it would be improper for the officer to state the fact of the order in his return. Now, while in such a case a question might arise in regard to the truth of the statement, it would be a question solely between the plaintiff and the officer. It would not be a question pertaining to the validity of the judgment, or effect of the officer's acts, which might concern third parties.

Having reached the conclusion that the defendant mortgagee was not justified in relying upon the return, as showing that the judgments were satisfied, we have to say that we think it was not justified in relying upon the clerk's entry. That referred to the return, and showed in effect no more than the return showed.

In our opinion the mortgage is subject to the lien of the judgments.

REVERSED.

The State v. Ruthven.

THE STATE V. RUTHVEN.

1. Grand Jury: OBJECTION TO PANEL: WAIVER. A defendant, who is in court personally or by attorney, must make his objection to the panel of grand jurors when his case is submitted to their consideration, and his failure to do so then, will be a waiver of his right to object subsequently.

2. Criminal Law: COMPOUNDING A FELONY: BY OFFICER. Under the charge of compounding a felony, the mere fact that the defendant was an officer was no reason why he should not be indicted under sections 3951-3952, Code, instead of under section 3948, Code.

3.

4.

5.

: WITNESSES: REBUTTAL. The State, in rebuttal, may call witnessess whose names are not indorsed upon the back of the indictment.

::

: WHAT CONSTITUTES. If the defendant corruptly exacted a consideration for an agreement not to prosecute a felony, to which he was knowing, he is guilty under the statute, although he took the consideration for another.

: INSTRUCTION: PRACTICE. The court, having clearly and unmistakably instructed the jury that the State must prove beyond a reasonable doubt the commission of the crime, with the compounding of which the defendant was charged, was under no obligation to give an instruction asked by the defendant embracing the same thought.

Appeal from Clay District Court.

THURSDAY, APRIL 20.

THE defendant was indicted and tried for, and convicted of, the crime of compounding a felony, namely, a grand larceny. He appeals.

P. O. Cassidy, for appellant.

J. M. Tolliver and Smith McPherson, Attorney-general, for the State.

DAY, J.-I.

The defendant moved to set aside the indictment upon the ground that the grand jury was not selected and drawn as required by law. The evidence taken upon this motion shows that some of the townships returned more names of electors to

1. GRAND jury: objec

tion to panel: waiver.

The State v. Ruthven.

serve as grand jurors, and some less than the number apportioned to their respective precincts. One township that was directed to send up twenty-five names returned thirty-four one that was directed to send up six names returned twelve, and one that was directed to send up nine names returned eight. Upon three of the townships no notice was served by the sheriff, as provided in section 237 of the Code. One of these townships sent up two names, another twelve, and the other fifteen. The number of names sent up was one hundred and nine, from which the board of canvassers selected seventy-two, to act as grand jurors during the year. The State filed an amended abstract showing that when the cause was reached the defendant appeared by attorney and filed a motion to quash the indictment, which motion the State confessed, whereupon the indictment was quashed, and the matter was referred to the grand jury for further consideration, and on the same day the grand jury returned an indictment charging the defendant with the crime of compounding a felony. The appellant denied the correctness of the amended. abstract. The transcript shows it to be correct in every particular. The defendant was in court, at least by attorney, when the matter was remanded to the grand jury. He should then have objected to the panel, if he had any objection to make. By failing to object then, he waived his right to do so subsequently. The State of Iowa v. Harris & Folsom, 38 Iowa, 242.

II. The defendant was indicted under sections 3951-3952, of the Code. The evidence shows that the defendant was

2. CRIMINAL deputy sheriff. It is insisted that he should have

law: com

pounding a felony by officer.

been indicted under section 3948 of the Code. It may be that the defendant, being a deputy sheriff, violated the provisions of section 3948, and was amenable thereto. But the mere fact that the defendant was an officer, furnishes no reason why he should be allowed immunity from the higher punishment prescribed in sections 3951

The State v. Ruthven.

III. The defense having rested, the State called in rebuttal, one Thomas W. Berry. The defendant objected to the 3.:: witness, because his name was not on the back of

4.

witnesses:

rebuttal.

what constitutes.

:

the indictment. The objection was overruled. This action of the court was right. The State, in rebuttal, may call witnesses whose names are not indorsed upon the back of the indictment. The State v. Parish, 22 Iowa, 284. IV. The evidence tends to show that one George T. Hanson had stolen from one Gideon Ruthven, the brother of the defendant, sixty-five dollars; that the defendant had a warrant for the arrest of George T. Hanson, and that he procured from George Hanson a note for $100, secured by mortgage, to Gideon Ruthven, agreeing in consideration of said note not to arrest George T. Hanson, and that neither he, nor his brother, would prosecute him for the offense. The defendant asked the court to instruct, that if the defendant received no benefit or consideration running to himself, or that he received no part of the note, he is not guilty. This instruction was properly refused. If the defendant corruptly exacted a consideration from George Hanson, for an agreement not to prosecute his son, he is guilty under the statute, although he took the consideration for the benefit of another.

5.

V. Counsel upon the part of the defendant, and upon the part of the State, have both argued the case upon the theory that the court refused to instruct the jury that instruction: practice. the crime, of which the defendant is accused of compounding, must be proved beyond a reasonable doubt. The record does not sustain this position of counsel. The court instructed the jury as follows:

"In order to warrant you in returning a verdict of guilty, the State must satisfy you, by the evidence introduced upon the trial, of the truth of each of the following material allegations of the indictment, necessary to be shown, in order to constitute the crime charged:

"First. That prior to the first day of January, one George