State v. Beal

• Decision Date: 02 April 1895
• Citation: 94 Iowa 39,62 N.W. 657
• Parties: STATE v. BEAL.
• Court: Iowa Supreme Court

94 Iowa 39

62 N.W. 657

STATE

v.BEAL.

Supreme Court of Iowa.

April 2, 1895.

Appeal from district court, Iowa county; M. J. Wade, Judge.

Defendant was indicted, tried, and convicted of the crime of larceny. From the imposition of a fine of $100 he appeals. Affirmed.T. H. Milner, for appellant.

Milton Remley, Atty. Gen., and Thos. A. Cheshire, for the State.

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 on the back of the indictment, but none of them were before the grand jury; and, as we shall see, 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 worth from eight to nine dollars.’ J. A. White ‘states': ‘Hogs would weigh 115 or 120 pounds. I would give eight or ten dollars apiece for them.’ Chas. Marcellus ‘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 notices were given that they would be called as witnesses. The objections were overruled, and these rulings are assigned as errors.

These rulings were expressly authorized by the statute, (Code, § 4289), and are sustained by the following cases: State v. Rodman, 62 Iowa, 456, 17 N. W. 663;State v. Kepper, 65 Iowa, 745, 23 N. W. 304. 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...