State v. Cook

• Decision Date: 12 December 1894
• Citation: 61 N.W. 185,92 Iowa 483
• Parties: STATE v. COOK.
• Court: Iowa Supreme Court

92 Iowa 483

61 N.W. 185

STATE

v.COOK.

Supreme Court of Iowa.

Dec. 12, 1894.

Appeal from district court, Hancock county; John C. Sherwin, Judge.

Defendant was indicted for the crime of rape. Upon a trial to a jury he was convicted of an assault with intent to commit rape, and sentenced to the penitentiary for the term of 18 months, and he appeals. Affirmed.Cliggit & Rule and J. E. Wichman, for appellant.

The Attorney General, Thos. A. Cheshire, and W. E. Bradford, for the State.

DEEMER, J.

It is first insisted that there is no judgment against defendant in the case; that there is simply the verdict of the jury and the sentence of the court. The record recites the overruling of the motion for new trial, and then proceeds: “And the court, on the same day, rendered judgment against the defendant as follows, to wit: And afterwards, on the same day, to wit, on this 9th day of December, 1892, * * * the defendant being brought into open court to receive sentence, he having been convicted of the crime of an assault with intent to commit rape, and he having been informed of the matters of the indictment, his plea, and the verdict of the jury thereon, and being asked if he had any legal excuse to show why judgment and sentence should not be pronounced against him, and no sufficient cause being shown, and the court being fully advised in the premises, it is therefore ordered and adjudged by the court that defendant be confined in the penitentiary at Anamosa at hard labor for the term of eighteen months, and that he pay the costs of prosecution,” etc. The exact complaint, as we understand it, is that the court did not, in express terms, find and enter of record that defendant was guilty of the crime of which he was convicted. If it be necessary for the court to find the defendant guilty of the crime of which he is convicted by the jury,--a point which we do not decide,--we do not think it is required that he do so in express words. If, from the whole record, it is apparent that the court did so find, either by adopting the verdict of the jury or otherwise, so as to leave no doubt that such judgment was had, then the record is sufficient. Looking, then, to the record in this case, we think it sufficiently appears that the court adopted the verdict of the jury as a part of its judgment, and sentenced accordingly. The judgment was sufficient.

2. The court permitted Clara Bohn to be examined as a witness on the part of the state, against the objection of defendant that she was examined before the grand jury, and her name indorsed on the back of the indictment, but that no minutes of her testimony were returned with the indictment. The record shows that the defendant had a preliminary examination before a committing magistrate, and that Clara Bohn was examined before him, and a minute made of her testimony, which was filed with the clerk of the district court, as by law provided. The grand jury, in its investigation of the case, had the witness brought before them, but made no minutes of her testimony, except to note as follows: “Clara Bohn sworn. Evidence same as on preliminary information.” The minutes made by the committing magistrate were, by the grand jury, returned with the indictment, with the statement that they were read before and used by the jury in finding the indictment. These minutes were filed by the clerk with the indictment. It is contended that as the witness was examined before the grand jury, and as no minutes of her testimony were made by them, and returned with the indictment, it was error to permit the witness to be used. We think the state was entitled to this witness' testimony, without reference to the fact that she was before the grand jury. Her testimony had been taken by the committing magistrate, and the minutes returned by him were used by the grand jury in finding the indictment, and the witness' name was indorsed on the back of the indictment. State v. Rodman, 62 Iowa, 456, 17 N. W. 663;State v. Wise (Iowa) 50 N. W. 59. But if it should be held that, having been before the grand jury, the minutes of her testimony there given should be returned, we think that they were so returned as that the witness was properly allowed to testify. The grand jury had the right to adopt the minutes of her...