1. ckiminai. granel jury waiver. — I. Under our statute, a defendant held to answer for a public offense may challenge the panel of the grand jury, or any individual juror. Eev. of 1860, § 4611. -^11^ ^at a ^ias f°rme(l or expressed an unqualified opinion that the defendant is guilty of the offense, for which he is held to answer, is a good cause for challenge to an individual juror. Eev., § 4613, Sub-div. 3. While this right of challenge is given by statute, it need not be exercised by the defendants. That a defendant may waive the right altogether, was decided by this court in The State v. Felter, 25 Iowa, 67; and that such waiver might be made by the defendant’s attorney, and in his absence, was also intimated ■in the same case. It remains, therefore, to determine whether the facts of this case show a waiver of this statutory right. The defendants were in the court, certainly by attorney, on the 19th day of March, 1872, when they filed their demurrer to the former indictment, and which was then heard and determined by the court in their favor;' and at the time of such hearing and determination, the court made the order, holding the defendants to bail for their appearance; and that their cause be submitted again to the grand jury. This was the time and opportunity for them to exercise their right of challenge to the grand jury. A failure to do so then may well be held a waiver of their right thereto, or cause therefor, if they had any.
2.-: — : conspiracy * pleading. II. Does the indictment charge an offense? It is not questioned that it is sufficiently formal. The objections to it relate to its substance. The indictment charges ^ that the defendants did feloniously conspire and confederate together with the fraudulent and malicious intent to injure the .administration of public justice, by . unlawfully *246getting eight barrels of intoxicating liquors out of the possession and control of the officer having possession of them under a search warrant legally issued upon an information for their seizure, under the act for the suppression of intemperance, and secreting them so that they could not be had to be disposed of as might finally be adjudged on the hearing of such information; and that with such intent and for such purpose, they did unlawfully cause a writ of replevin to be issued for said, liquors, by means of which writ of replevin said defendants did get said eight barrels of liquor out of the possession of said officer, and did secrete the same so that it could not be had to be disposed of under the final judgment of forfeiture rendered on said information.
It cannot be questioned that to constitute a good indictment for a conspiracy, it must allege the conspiracy to be for the purpose of doing an illegal act, or the doing of a legal act by illegal means; and the counsel for the defendants insist that this indictment does not charge either — that it is not an illegal act for a person to obtain possession of his own property — and under certain circumstances intoxicating liquor is property— and that a writ of replevin is not illegal means.
3. • — :-: replevin oí liquors seized, Our statute enacts, Rev. of 1860, “ Sec. 4251. That any person who shall knowingly, and without authority of law, take, carry away, secrete or destroy any goods or , ,, 7 . , , / 7 ° , 7 chattels while the same are lawfully m the custody of any sheriff, coroner, marshal, constable or other officer, and rightfully held by such officer by virtue of execution, writ of attachment or other legal process, issued under the laws of the State of Iowa, shall be deemed guilty of larceny, and shall be punished, * * &c.” Now, it has been held by this court that intoxicating liquors seized by virtue of a warrant issued upon an information for their forfeiture, are not the subject of replevin. Funk & Hardman v. Israel, 5 Iowa, 438, (i. e,) 452. To take them from the custody of the law by such means would not only be illegal, but would subject the party also to punishment as for contempt by the court which issued the process under which they were seized. True, a writ of replevin is a lawful process for many purpo*247ses; but it is not a lawful process for the taking of property from tbe possession of an officer rightfully holding it under a writ properly issued in a criminal proceeding. If the defendants, therefore, as is charged in the indictment, did knowingly conspire to, and did take said liquors from the possession of the officer with intent to injure the administration of justice, the fact that they accomplished their purpose by means of a writ of replevin would hot exempt them from liability, because it was illegal to use that writ in such a case.
Affirmed.