State v. Gilbert

• Decision Date: 05 May 1908
• Parties: STATE v. GILBERT ET AL.
• Court: Iowa Supreme Court

138 Iowa 335

116 N.W. 142

STATE

v.GILBERT ET AL.

Supreme Court of Iowa.

May 5, 1908.

Appeal from District Court, Iowa County; R. P. Howell, Judge.

The defendants were charged by indictment with the crime of feloniously exposing an infant child. At the close of the evidence for the state, the defendants moved for an instructed verdict in their favor, and the motion was sustained. Judgment was entered discharging the defendants, and the state appeals. Affirmed.H. W. Byers, Atty. Gen., Chas. M. Lyon, Asst. Atty. Gen., and W. E. Wallace, Co. Atty., for the State.

Popham & Havner, for appellees.

BISHOP, J.

1. Before the commencement of the trial, the defendants applied to the court for an order commanding the issuance of a subpœna to secure the attendance of certain persons as witnesses on their behalf. The application recited the names of the witnesses, but did not disclose what facts were expected to be proven by them. The state filed a resistance to the application based wholly upon the failure to include therein a statement of facts material to the issue. The court overruled the resistance, and ordered that the witnesses be subpœnaed at the expense of the state. And this is the first matter of error of which the state complains. Assuming that such orders are reviewable on appeal taken by the state, we are not quite sure that we comprehend what is here expected from us as a result of the present appeal. The statute says that the court or judge on satisfactory showing that certain witnesses are material and necessary for the defense may order such witnesses to be subpœnaed at the expense of the state. Code, § 5492. It is evident that the proceeding leading up to the order was intended to be wholly ex parte; there is no requirement for notice, nor is the manner and form of the proceeding prescribed. It seems to have been left for the court or judge to consider the showing made--written or oral--and grant the order if satisfied; otherwise, to refuse it. The whole matter is confided to his discretion, and there is no way in which we can determine whether there has been an abuse except on examination of the showing on which the order was based. Here, the record is silent. True, the written application does not contain a showing, but we must assume that the court performed its duty and required that he be put into possession of the reasons for the application before making the order. To this it may be added that there is no showing of...