State v. Craig

• Citation: 43 N.W. 462,78 Iowa 637
• Parties: STATE v. CRAIG.
• Decision Date: 24 October 1889
• Court: Iowa Supreme Court

78 Iowa 637

43 N.W. 462

STATE

v.CRAIG.

Supreme Court of Iowa.

Oct. 24, 1889.

Appeal from district court, Henry county; CHARLES D. LEGGETT, Judge.

Indictment for selling intoxicating liquors in violation of law. From a judgment of conviction the defendant appeals.R. Ambler & Son, for appellant.

John Y. Stone, Atty. Gen., and A. W. Kinkead, for the State.

GRANGER, J.

The indictment contains several counts, and each count charges the sales as having been made by one Elijah Stearns, as agent for the defendant, and each count also charges the sales to some particuular person, and several errors are assigned as to the proceedings in the district court.

1. Complaint is made that of the witnesses used by the state who were examined before the grand jury, some were used without their testimony having been filed in the case, and no statement of the filing of such minutes was entered on the appearance docket. The minutes of the testimony of such witnesses were delivered to the clerk with the indictment, and kept there as a part of the record. These minutes of testimony bore, as evidence of the filing, a stamp impression with the name of the clerk, designation of office as “Clerk, Henry County, Iowa,” and over the signature and date were the words “Clerk of District Court,” and the word “Filed.” The minutes in the appearance docket show the filing of the indictment, but contain no reference to the minutes of the testimony. The points made in argument are-- First, that the filing should show the signature of the clerk of the district court; and, second, that the filing should be evidenced by an entry on the appearance docket. As to the first point, we can say on authority that the testimony was filed when delivered to the clerk to be kept as a part of the record, and such filing need not be evidenced by an indorsement. While the indorsement is advisable, it is not absolutely required. State v. Briggs, 68 Iowa, 416, 27 N. W. Rep. 358; Same v. Guisenhause, 20 Iowa, 227. As to the second point, counsel for appellant have not favored us with their reasoning or a reference to authorities; and our reflections lead us to consider the effect of section 200 of the Code, where there is a failure to make a memorandum in the appearance docket of the filing of such a paper. It must be conceded that the language of the section is broad enough to require the memorandum of the filing of the minutes of the testimony, as, after specifying pleadings and motions, it has the words, “or paper of any other description in the cause;” and then we have the words, “and no pleading of any description shall be considered as filed in the cause * * * until the said memorandum is made.” The minutes of the testimony are not a pleading of any description. Code, § 2645. This point in the case is controlled by the holdings in Byington v. Moore, 62 Iowa, 470, 17 N. W. Rep. 644, and Royer v. Foster, 62 Iowa, 321, 17 N. W. Rep. 516. The failure to make the memorandum in the appearance docket does not deprive the state of the use of the witnesses examined before the grand jury, where the minutes are filed with the clerk.

2. Certain witnesses whose names do not appear on the indictment were examined in the trial for the state, and appellant urges the point as error. The minutes of their testimony were returned by the grand jury with the indictment. The indictment was not assailed because of this defect. It was not error to permit the examination of witnesses. State v. Fowler, 52 Iowa, 103, 2 N. W. Rep. 983;State v. Flynn, 42 Iowa, 164.

3. The state, desiring to use a witness not examined before the grand jury, served notice, under the provisions of Code, § 4421, that it would introduce one Broadwell, and prove by him that he saw Stearns pay over to defendant money in Brazelton House, etc. Afterwards the state recalled the witness, and examined him as to receiving beer and whisky from defendant; and defendant urges that the state should have been confined in the examination to...