State v. Beal

62 N.W. 657, 94 Iowa 39

• Court: Supreme Court of Iowa
• Decided: April 2, 1895
• Status: Published

Opinion

Deemer, J.

The state produced as witnesses against defendant Charles Marcellus, J. A. White, Paul Herman, George Wright, and H. J. Richardson. The names of all these witnesses except Wright -were indorsed cn the bach of the indictment, but none 'of them were before the grand jury; and, as we shall sée, no notice was served upon the defendant of the introduction of their testimony, as required by section'5806, McClain’s Code. It appears, however, that defendant had a preliminary examination before a committing magistrate, and that this officer took down minutes of the testimony of witnesses taken before him, which he returned to the district court, and that the grand jury used these minutes when investigating defendant’s case. Attached to the indictment returned was the following statement: “State vs. Andrew Beal. The following evidence taken from the sworn witnesses taken before the justice of the peace. H. J. Richardson ‘states’: ‘These hogs were worth1 from, eight to nine dollars.’ J. A. White ‘states’: ‘Hogs would weigh 115 or 120 pounds. I would give eight to ten dollars apiece for them.’ Chas. Marcelina ‘states’: ‘Hogs would weigh 120 or 130 pounds. Worth $7.50 to $8.00.’ Paul Herman ‘states’: ‘Weighed hogs. Weighed 117 pounds and a fraction each; total weight, 352 pounds.’ Said witnesses not having been examined by the grand jury.” When the witnesses named were produced for examination, defendant objected to* their testifying,- because they were not before the grand jury, and no notice was given that they would be called as witnesses. The objections were overruled, and these rulings are assigned as errors.

1 These rulings were expressly authorized by the statute (Code, section 4289), and are sustained by the following cases: State v. Rodman, 62 Iowa, 456; State v. Kepper, 65 Iowa, 745. The defendant interposed an additional objection to witness Wright, —that his name was not indorsed on the back of the indictment. It was conceded, however, that this witness was before the committing magistrate; that the minutes of his testimony, taken down by the magistrate, were used by the grand jury, and returned by it with the indictment. The only additional question with reference to this witness, then, is, was it error to allow him to be examined, his name not having been so indorsed? Under our practice, this witness was constructively before tbe grand jury, and, bad bis name been on tbe back of tbe indictment, be could certainly have been used. As bis name was not on tbe back of tbe indictment, tbe defendant might have moved to set tbe indictment aside. State v. Flynn, 42 Iowa, 164; State v. Fowler, 52 Iowa, 103. Yet failure to indorse the witness’ name on the indictment is not a ground of objection to bis testimony. State v. Story, 76 Iowa, 262, and authorities last above cited.

II. A notice of tbe introduction of these witnesses was served upon defendant’s counsel four days before tbe trial. It is insisted that such notice was not properly served. In view of what we have already said, it is not necessary to' determine this question. It ■may be said, however, that, as tbe statute does not make provision for substituted service, it is likely that personal service is, as a general rule, required.

2 III. Complaint is made of tbe conduct of tbe county attorney during tbe trial in propounding wholly irrelevant and prejudicial questions to defendant’s witnesses, and in attempting to introduce a record of tbe conviction of one of defendant’s witnesses for tbe crime of petit larceny. His conduct in this respect is not to be commended, but, as the court immediately sustained objections to the- questions and tbe proffered testimony, we do not think any prejudice resulted to appellant therefrom.

We have examined tbe whole record, and find no prejudicial error, and tbe judgment is affirmed.