State v. Gilbert

• Decision Date: 05 May 1908
• Citation: 116 N.W. 142,138 Iowa 335
• Parties: THE STATE OF IOWA, Appellant, v. CHARLES F. GILBERT and NELLIE GILBERT, Appellees
• Court: Iowa Supreme Court

116 N.W. 142

138 Iowa 335

THE STATE OF IOWA, Appellant, v. CHARLES F. GILBERT and NELLIE GILBERT, Appellees

Supreme Court of Iowa, Des Moines

May 5, 1908

Appeal from Iowa District Court.--HON. 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, Attorney General, Chase. W. Lyon, Assistant Attorney General, and W. E. Wallace, County Attorney, for the State.

Popham & Havner, for appellees.

OPINION

BISHOP, J.

I.

Before the commencement of the trial, the defendants applied to the court for an order commanding the issuance of a subpoena 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 subpoenaed 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 subpoenaed at the expense of the State. Code, section 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...