State v. Dale
| Decision Date | 04 October 1899 |
| Citation | 80 N.W. 208,109 Iowa 97 |
| Parties | STATE OF IOWA, Appellant, v. CHARLES A. DALE |
| Court | Iowa Supreme Court |
Appeal from Butler District Court.--HON. J. F. CLYDE, Judge.
THE defendant was charged by the indictment with willfully and feloniously breaking and entering a building in which goods and merchandise were kept for use, sale, and deposit. On trial, he was acquitted and discharged. The state appeals.
Reversed.
No appearance for defendant.
Milton Remley, Attorney General, and Geo. A. McIntire for the State.
The county attorney, desiring to call one John Brannan as a witness, who had not been examined before the grand jury, and whose name was not indorsed upon the indictment, gave notice under section 5373 of the Code. On being called, Mr. Brannan was asked, "What is your present occupation?" to which he answered, "Soldier, at present; working for the government." Defendant's counsel objected to the witness testifying under this notice, for the reason that his occupation is not given in the notice as required by statute. Thereupon the state asked, "What was your occupation before your enlistment?" to which defendant's objection was sustained, and the court, upon defendant's objection, refused to allow any further examination of Mr Brannan as to his occupation. To all of these rulings the state excepted, and from them this appeal is taken.
Said section 5373 contains the following: "The county attorney, in offering the evidence in support of the indictment in the order prescribed in the last section, shall not be permitted to introduce any witness who was not examined before a committing magistrate or the grand jury and the minutes of whose testimony were not presented with the indictment to the court, unless he shall have given to the defendant a notice in writing, stating the name, place of residence and occupation of such witness, and the substance of what he expects to prove by him on the trial, at least four days before the commencement of such trial." The notice given in this case was duly served in time, and notified the defendant that the state would introduce the testimony of "John Brannan, a resident of the town of Shellrock, Butler county, Iowa, whose occupation is that of a day laborer, and whose age is 25 years," and stating the substance of what it was expected to prove by him. The objection seems to have been sustained upon the theory that, the witness having stated his occupation to be different from that named in the notice, his statement was conclusive, and that the variance was such as that the state was not entitled to his evidence. "The purpose of the statute is to secure to the accused such knowledge of the evidence which will be given against him as will enable him to make proper preparation to contradict or explain it." State v. Rainsbarger, 74 Iowa 196 37 N.W. 153; State v. Harlan, 98 Iowa 458, 67 N.W. 381. "But errors in such notices as to the witness' place of residence, or to facts expected to be proven by him, will not render the introduction of testimony of the witness erroneous, where the defects or mistakes in the notice are not prejudicial." State v. Rainsbarger, supra. See, also, State v. Kreder, 86 Iowa 25, 52 N.W. 658. In State v. Rainsbarger, supra, the notice gave the place of residence of the witness as Kansas City, Kansas, and it appeared that he lived in Kansas City, Missouri. It also said that this omission in giving his true place of residence was not a reversible error, unless...
To continue reading
Request your trial