dissenting. — I. The additional examination I have given this case, upon the petition for rehearing, has deepened my conviction of the errors of the majority opinion heretofore filed. The foregoing supplemental opinion by Mr. Justice Cole, in my opinion, fails to answer the arguments that have, at different times, been advanced in this court in support of the sufficiency of the proceedings in the case, and the correctness of the judgment of the District Court. I will, that the questions involved in the case and the positions I *643take may be clearly understood, briefly notice some of the arguments advanced in the supplemental opinion.
II. That Dutell v. The State supports the decision announced by my brothers may be, and I think has been, conceded. But that it is overruled by the subsequent cases of The State v. Carney and The State v. Ansaleme, and the other cases cited, the opinions of the majority have failed successfully to deny.
III. What element in a case constitutes a precedent to be followed as authority? It is tire legal principles therein announced — the rules — .the legal formulae, which were applied to the facts found in the case and led the court to the decision settling the rights of the parties. See my remarks upon this subject in The City of Dubuque v. Ill. Cent. R. Co., 39 Iowa, 79. The facts constitute no part of the precedent; they are only considered to determine what rules, what legal formulae, were recognized and applied in the case. Rules found in a case may be applied to another wherein the facts are not the same. If the precise question of law occurs in two cases haying different facts, it must be decided in each by the same legal rule. If a question has been determined in a case and again arises, the prior decision must be followed, though the facts of the last case differ from the first. Of course, I am not speaking of such differences in fact as present different questions of law, but only of such as involve the same legal questions.
Now, if we find an old case wherein the decision is based upon a certain legal principle arising upon given facts, and also discover more recent cases wherein are different facts, which must be, however, governed by the same legal rules as those of the first, and the principles, the legal rules, applied in' the last cases are different from those applied in the first, we must admit that the older and later decisions are in conflict. If this conflict is not to be reconciled, we must hold that the last decisions disregarded, set at nought, overruled, the first. Under these circumstances we are required to follow.the last decisions, — certainly, if they be more in accord with reason than the prior one. . .
*644Dutell v. The State lield, that in a case where a députy sheriff aided in comparing the ballots for the selection of a grand jury, with the jury list, the grand jury, drawn with such ballots, was illegal. The principle of that decision, the legal rule applied, is that the requirement of the statute, imposing the duty of comparing the ballots upon the sheriff, is mandatory and not directory, and its disregard defeats the act when done by the sheriff’s deputy. The decision could not have been based upon any other principle. No principle' is announced in the opinion, but this one will alone support the ruling. It will be noticed that the facts of the case involve the proceedings, or steps, provided by law to be taken in the selection of the grand jury; one of these steps was not taken, the law in one particular was not followed. It cannot be claimed that the omitted step was required with any more positiveness by the law than any other one provided for in selecting a jury — they are all demanded by the statute in the same language, and it cannot be pretended that one is more important than another.
19__di_ ute:construetum. IV. In the subsequent cases of The State v. Carney, and The State v. Ansaleme, in the selection of the grand juries it appeared that the clerk performed duties required sheriff, the judges of the election failed to perform duties required of them, and the juries were selected from a list less in number than is required by law. Now, the statute requiring the particular acts which were not done, or which were done in a manner differently than is required, is the identical statute requiring the sheriff to compare the ballots for the jury — the different provisions of the statute applying to the different officers, and requiring the different acts. The things to be done under the statute are all of the same character and have the same object, namely, the selection of a grand jury.
The court in the two cases last cited, which have been fol- - lowed in other decisions of this court, held that the departures from the requirements of the law did not invalidate the acts of the grand jury and render it an illegal body. The decision was based upon the principle that the requirements of the *645statute are directory simply, and not mandatory. If the statute be directory in requiring the clerk to do a particular duty, or when it requires a jury to be selected from a given number of names, it must be directory when it requires the sheriff to do a specified duty. Erom this conclusion there can be no escape.
It thus appears that there is an irreconcilable conflict between Dutell v. The State, and the later cases. The former case was disregarded, held for nought, overruled by the later decisions. Under the doctrines of the cases last named it may be admitted that the act of the deputy sheriff was a nullity; but, being required by a directory statute, its omission did not render the grand jury illegal. In this view the provision of § 707 of the Code cannot lead to a different conclusion. The deputy sheriff, not being the officer required by law to compare the ballots with the list, his act was that of a mere stranger, and was not the act required by law. But, in the absence of the act required, as the statute prescribing it is directory, the jury selected was not illegal.
Y. Neither of the opinions of the majority of this court has answered these arguments. They are based upon the ground that the decisions in the cases last rendered are not in conflict with Dutell v. The State. They ignore the fact that the same legal rules are applicable to all of the cases- — that there is no such difference in facts as to demand the application of different principles to the respective cases.
20_.-ury. informality. YI. "While it does appear, as is stated in the majority opinion, that certain errors in the jury list and ballots were corrected, it is not shown nor is it claimed that there were any other errors that were not corrected. I am, therefore, authorized to conclude that the grand jury, drawn and impaneled under the proceedings which are held fatally defective by my brothers, was the identical jury — composed of the identical persons, required by law. If the sheriff had performed his duty instead of intrusting it to his deputy, the result would not have been different. The ballots, when put into the box and when drawn, as I understand the record, did correspond precisely with the list. If, then, it be true, as *646is stated in the supplemental opinion, that there were corrections made in the ballots, they did finally conform to the list and were correct. Where is the prejudice to defendant? Surely the law, at this day, will not defeat such legal proceedings upon the merest technicalities, against the positive and direct showing that no prejudice has been wrought to defendant. Code, § 4638.
YII. With a few remarks upon the construction of the 'statute under which the defendant was indicted, and the jurisdiction of this court, I will close my discussion of this case. T will not ’repeat the thoughts upon the points found in my first dissenting opinion, though probably so briefly expressed there that they have failed to attract the attention of my brothers.
It is well said by Mr. Justice Cole that the statute “under which the indictment was found defines three acts as felonies, to-wit: the unlawful converting of public moneys by an officer to his own use, using by way of investment, and the loaning without the authority of law. These acts and these only are declared to be embezzlement. What follows in the same section is evidently to define the extent of the embezzlement.” As we agree upon the doctrine of this question, let it be regarded as settled.
The defendant is indicted for two of the acts above specified, in separate counts the first count for loaning, the second for converting, the money of the State to his own use.
21__in_ wiiaiic'must aitege. The term “ unaccounted for,” which has given us so much trouble, occurs in that part of the section which, Mr. Justice Cole says, is intended to define the extent of the crime. It.is, under the rules of our language, connected with, the preceding words, taken, converted, invested, used, loaned, by a conjunction understood between each.
Now, it is plain that each of these words cuts as important a figure in the construction of the section as the term “ unaccounted for.” The indictment, then, ought to allege in each case, if the construction given the statute in the opinions of *647the majority be correct, that the money was taken, converted, invested, used and loomed, as well as unaccounted for.
The first count which charges that defendant loaned the money, therefore, should allege that it was, invested, used, converted omd unaccoimted for; the second count, which charges the conversion of the money, should allege that it was loaned, invested, etc., etc.
But this cannot be admitted; yet the construction of the section adopted by the court absolutely leads to. this result.
. Remembering the conclusion of Mr. Justice Cole, announced in the above quotation from his opinion, that these words serve no other office than “ to define the extent of the embezzlement,” ■we find each relates to the antecedent words or phrases used in defining the crime or crimes as its meaning requires. But as they are used only “ to define the extent of the embezzlement,” and as no part of the definition of the crime, they need not be repeated in the averments of the indictment. The punishment, it will be observed, is graduated by the extent of the crime. The indictment alleges the extent by proper averments of the ■amount embezzled.' If it be shown by the state, upon the trial of the indictment, that such a sum was in defendant’s hands, which upon demand he refused or failed to pay over to his successor, or one authorized by law to receive it, this is sufficient evidence to warrant a conviction. But, as a defense to the indictment, he may account for the money by showing its lawful disposition. State v. Bryan, 40 Iowa, 379. If the defendant fails to make and establish such a defense, the money is said to be unaccounted for; he is, in that case, conyicted and punished by imprisonment and a fine, graduated by the amount of money which is so u/naccounted for.
Till. Upon the question raised by the Attorney General in his petition for a rehearing, involving the jurisdiction of this court, I will submit a few brief observations.
'22 appeal • fmai°jul<5°m ment. It is insisted by the Attorney General that, as no final judgment has been rendered in the case by the District Court, an aPPeal not lie from the decision of that court ^P011 the demurrer and other intermediate orders, TEe point raised must be determined uj>on the *648statutes regulating appeals to this court, it being remembered that we possess no jurisdiction not conferred by statute, and can acquire authority to determine no question except in the manner prescribed by law. While this is a court for the corr rection of the errors of inferior tribunals, we can only exercise our authority over subjects and in the manner prescribed by the statutes of the state.
Code § 4522, (Rev. § 4906,) provides that in criminal cases “no appeal can be taken until after judgment.” What is meant by the word judgment as here used? Chapter 38, Title 25, which precedes, save one, the chapter in which the section first quoted is found, treats of the judgment in criminal cases. The word occurs therein twenty-one times and in every instance means the final disposition of the case, the discharge of the prisoner or his sentence of punishment. It is used in no other sense in the chapter. In the following chapter it occurs sixteen times, and in every instance has the same meaning. In the chapter wherein the section quoted above, 4522, is found, it occurs but once in a preceding section and there with a like meaning, and in every instance where it is used in the following sections of the chapter it is intended to express either the sentence of punishment, or the discharge of the prisoner. The conclusion is irresistible that it means nothing else in the section quoted, and that under it appeals in criminal cases can only be taken from the judgments which are final in their nature.'
But the statute provides differently in civil cases. In these appeals may be taken from many intermediate orders and decisions. See Code, § 3164. Had the legislature intended that like practice should prevail in criminal cases, it would have been provided for in express terms.
If the statute does not clothe this court with jurisdiction to entertain appeals except from final judgments, we cannot acquire the authority from the agreement of the parties, in cases where such judgments are not rendered. In such cases the subject matter is not brought within the reaeh of our jurisdiction by proceedings or action of the court below, which are prescribed by law as necessary for that purpose. Tf it *649were within the reach of our jurisdiction, parties could waive, by consent, process on matters of that kind, necessary to bring it before this court.
. Inasmuch as there is no power in the state to review our decisions, we should, where jurisdiction is not clearly, expressly, conferred by legislative enactment, refuse to exercise authority. Unless we be restrained by this rule our jurisdiction may be extended to subjects not contemplated or intended by the law-making power of the state. I believe the rule I have stated is recognized by the authorities.
There is no question of the liberty of the citizen involved upon which an argument may be based for extending our jurisdiction beyond the express provisions of the statute. All the questions now before us may be determined after final judgment in the District Court. The liberty of the- defendant would, in that case, be protected and we would run no hazard of overstepping the bounds prescribed for our jurisdiction by law.
Upon the point of propriety and taste raised by my brothers against the action of the Attorney General, in now urging the objection to our jurisdiction, I have nothing to say, except that these are matters that ought to have no weight in the administration of the law. It ought never to be too late for a court to inquire into its own jurisdiction.
I will not farther consume time in the discussion of the points considered in the supplemental opinion. In my judgment, the action of the District Court ought, upon the grounds presented in this and my first dissenting opinion, to be affirmed.