State v. Doss

• Decision Date: 12 December 1899
• Parties: STATE v. DOSS.
• Court: Iowa Supreme Court

110 Iowa 713

80 N.W. 1069

STATE

v.DOSS.

Supreme Court of Iowa.

Dec. 12, 1899.

Appeal from district court, Clarke county; W. H. Tedford, Judge.

The defendant was convicted of the crime of keeping a gambling house. From the judgment, which required him to pay a fine of $100, and provided, in default of payment, that he be confined in the county jail, he appeals. Affirmed.Temple & Hardinger, for appellant.

Milton Remley, Atty. Gen., for the State.

ROBINSON, C. J.

The defendant contends that the district court erred in permitting certain witnesses to testify, on the alleged ground that the minutes of their testimony taken before the grand jury were not returned with the indictment, and filed with it, and that notice of the introduction of their testimony was not given. The record submitted to us shows the following: Attached to the indictment are what purport to be minutes of the testimony of the witnesses referred to, which appear to be duly signed by the witnesses. On the indictment is an indorsement as follows: “The within indictment was presented to the district court of Clarke county, Iowa, in open court, by the foreman of the grand jury, in the presence of all the grand jurors, and filed by the clerk of the district court of said county, on the 16 day of Feb., A. D. 1899. W. E. Morrow, Clerk District Court of said County.” There is no other mark of filing on the indictment. A certificate is attached to the indictment, signed by the clerk, which contains the following: “I, W. E. Morrow, clerk of the district court in and for Clarke county, Iowa, hereby certify that the foregoing is the original indictment returned by the grand jury of said county against D. W. Doss on the 16th day of February, 1899, and that it now contains all of the indorsements and filing marks, and is in the same form in which it was presented to the court by the foreman in the presence of the grand jury.” It will be noticed that neither certificate contains any specific reference to the minutes of testimony taken before the grand jury, and they are not in any manner referred to or identified by any filing mark or certificate, unless they are to be treated as so far a part of the indictment as to be included in the certificates which we have set out. But they are not a part of the indictment. Code, §§ 5279, 5280; State v. Briggs, 68 Iowa, 416, 27 N. W. 358. Section 5373 of the Code provides that the county attorney, in offering evidence in support of the indictment, shall not be permitted to introduce any witness “the minutes of whose testimony were not presented with the indictment to the court,” unless he shall have given notice in writing of such witness. Section 5258 requires the clerk of the grand jury to take and preserve minutes of the proceedings and of the evidence given before the grand jury, and provides that, when an indictment is found, “all minutes and exhibits relating thereto shall be returned therewith, and filed by the clerk of the court, and attached to the indictment.” Section 5276 provides that: “When an indictment is found, the names of all witnesses on whose evidence it is found must be indorsed thereon before it is presented to the court, and must be, with the minutes of the evidence of such witnesses, presented to the court by the foreman in the presence of the grand jury, and all of the same marked ‘Filed’ by the clerk, as provided in the chapter relating to the duties of the grand jury, and shall remain in his office as a record.” It was held prior to the enactment of the Code that the failure of the clerk to file an indictment would not invalidate the proceedings thereunder. State v. Rivers, 58 Iowa, 102, 12 N. W. 117. In State v. Postlewait, 14 Iowa, 446, it was held that the statute did not require the minutes of the evidence taken before the grand jury to be attached to the indictment, and made a part of it, as a prerequisite to the admission on the trial of the evidence of the witness, minutes of whose testimony had been so taken. In State v. Guisenhause, 20 Iowa, 227, it was said of minutes of testimony taken before the grand jury which were returned to the clerk of the court, and by him deposited as required by law, although not marked “Filed,” that they were in fact filed. See, also, State v. Briggs, 68 Iowa, 416, 27 N. W....