State v. Kepper
| Decision Date | 21 April 1885 |
| Citation | 23 N.W. 304,65 Iowa 745 |
| Parties | THE STATE v. KEPPER |
| Court | Iowa Supreme Court |
Appeal from Henry District Court.
THE defendant was convicted of the crime of burglary, and sentenced to a term of imprisonment in the penitentiary, and from this judgment he appeals.
AFFIRMED.
L. G. & L. A. Palmer, for defendant.
Smith McPherson, Attorney-general, for the State.
There was a preliminary examination of the defendant on the charge and he was held to answer the same. The papers relating to the examination, which were returned by the magistrate to the district court, were at the proper time submitted to the grand jury. Among these papers was what purported to be the minutes of the evidence given by the witnesses who were examined on the preliminary examination, but no certificate of the magistrate to the truth of the minutes was attached thereto, as required by Code, § 4242. The witnesses were not called before the grand jury for examination, but the indictment was found on the minutes of evidence. And the district attorney did not serve the defendant with any notice stating the names of the witnesses whom he would examine in support of the indictment, and the substance of the testimony they would give.
On the trial defendant's counsel objected to the examination of the witnesses in support of the indictment, and moved the court to exclude their testimony, on the ground that they had not been sworn and examined before the grand jury, and the papers purporting to be the minutes of the evidence on the preliminary examination were not authenticated by the certificate of the magistrate. This objection was overruled by the court, and the witnesses were examined and gave testimony in support of the indictment.
Before the enactment of chapter 130, Laws of the Eighteenth General Assembly, an indictment could be found only upon evidence given by witnesses produced, sworn and examined before the grand jury, or furnished by legal documentary evidence. (See section 4273, Code of 1873.) But under the provisions of that chapter the grand jury may find an indictment upon the minutes of evidence given by the witnesses before a committing magistrate.
It will be observed that defendant's objection raises no question as to the power of the grand jury to find the indictment without calling the witnesses and taking their testimony under oath, when they did not have before them an authenticated minute of the evidence before the committing magistrate. But the objection relates solely to the right of the state to examine witnesses in support of the indictment who were not examined before the grand jury, and when no properly authenticated minute of their testimony before the committing magistrate was before that body when the indictment was found.
Section 3 of chapter 130, Acts of the Eighteenth General Assembly (which is a substitute for section 4289 of the Code of 1873) provides that, when an indictment is found on the minutes of evidence of witnesses before the committing magistrate, a brief minute of such evidence shall be written out and returned by the grand jury with the indictment. Section 4275 provides that a like minute of the testimony of witnesses who have been examined before the grand jury shall be returned with the indictment. And section 4292 provides that these minutes shall be filed by the clerk of the court, and shall remain in his office as a record. And the state is entitled on the trial to examine any witness in support of the indictment who was examined either before the grand jury or the committing magistrate, and whose evidence was considered by the grand jury in finding the indictment, and a minute thereof returned to the court with the indictment.
When the grand jury returned the indictment and the minutes of the evidence, and these were filed, the record thus made became the legal evidence as to the testimony on which they acted in finding the indictment. It showed that the indictment was found on the minutes of evidence taken before a committing magistrate. When the grand jury return an indictment, the law presumes that they had before them sufficient legal evidence to warrant them in finding it. There is a presumption also that everything was done in the course of the investigation which the law directs the grand jury to do before finding an indictment. If witnesses are produced before it for examination, the law requires that their testimony shall be given under the sanction of an oath, and, when the grand jury have returned a minute of the testimony of witnesses examined before...
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