State v. Wise

50 N.W. 59, 83 Iowa 596

• Court: Supreme Court of Iowa
• Decided: October 22, 1891
• Status: Published

Opinion

Given, J.

1. Criminal procedure: certificate of evidence on preliminary examination: indictment. I. On the trial the appellant objected to the examination of Bertha Lillibridge and W. H. Oaton on behalf of the state, for the reason that no minutes of the testimony of either were taken by the grand jury; that they were n0^ witnesses before the grand jury; that no notice that their testimony would be taken had been served; and that what purported to be minutes of their testimony was not taken by any authorized authority, and was not proper to be considered by the grand jury. The objection was overruled, and the ruling is assigned as error.

It appears from the record that the defendant was held upon preliminary examination to the grand jury; that upon the preliminary examination the justice called Mr. W. S. Harris to take the testimony of the witnesses; that Mr. Harris took it in shorthand, and afterwards transcribed it in type-writing, which copy the justice certified, and returned to the clerk of the court as the minutes of the testimony before him in the case. Mr. Harris was not sworn to correctly take the testimony, nor to the correctness of the copy, but he testifies that the copy is a true statement of the minutes taken by him. Section 4293 of the Code requires that, “when an indictment is found, the names of all the witnesses on whose evidence it is found must be indorsed thereon before it is presented to the court, and - the minutes of the evidence of such witnesses must be presented with the indictment to the court.” Under section 4273, an indictment may be found “upon the minutes of the evidence given by witnesses before the committing magistrate.” Section 4241 requires the examining magistrate to write out, or cause to be written out, the substance of the testimony given on the examination by each witness examined before him. It is not required that the person whom the magistrate may cause to write out the testimony' shall be sworn, or that the minutes sent up by the magistrate shall be verified by his oath or signed by the witnesses. It is the substance of the testimony that is to be taken, and the magistrate, having heard the testimony, ‘may certify that the minutes thereof taken by the person called by him are a correct minute of the substance of the testimony. The minutes of the testimony in this case were taken as authorized by law, and sufficiently authenticated to authorize the grand jury to act upon them, and to indorse the names of these witnesses upon the indictment. There was no error, therefore, in overruling the defendant’s objections to the examination of these witnesses. State v. Rodman, 62 Iowa, 456.

2. -: new trial: sufficiency of evidence to sustain verdict: appeal. II. One ground of the motion for a new trial is that the verdict is contrary to the evidence. -■ The rule in such cases is different from that applied . . .. . , , m civil cases. This court, though proceeding carefully and cautiously, will interfere in criminal cases more readily than in civil. We will not in a criminal case support a verdict if it be against the clear weight of the evidence. State v. Tomlinson, 11 Iowa, 401; State v. Johnson, 19 Iowa, 231; State v. Collins, 20 Iowa, 85; State v. Elliott, 15 Iowa, 72; State v. Hilton, 22 Iowa, 241; State v. Moffitt, 31 Iowa, 316; State v. Woolsey, 30 Iowa, 251; State v. Campbell, 69 Iowa, 556; State v. Billings, 81 Iowa, 99. In our opinion.the verdict is against the weight of the evidence, and the motion for new trial upon that ground should have been sustained.

As it follows from this conclusion .that the case may be retried, we forbear from any discussion of the evidence.' Other questions discussed will not arise on a retrial, and are, therefore, not noticed. For the error mentioned the judgment of the district court is REVERSED.

Robinson and Oranger, JJ., dissenting.