State v. Mathews

• Decision Date: 13 November 1906
• Citation: 109 N.W. 616,133 Iowa 398
• Parties: STATE v. MATHEWS.
• Court: Iowa Supreme Court

133 Iowa 398

109 N.W. 616

STATE

v.MATHEWS.

Supreme Court of Iowa.

Nov. 13, 1906.

Appeal from District Court, Polk County; A. H. McVey, Judge.

The defendant was found guilty of murder in the first degree, and appeals from a judgment of life imprisonment. Affirmed.Woodson and Brown, for appellant.

Chas. W. Mullan, Atty. Gen., Lawrence De Graff, Asst. Atty. Gen., and Jesse A. Miller, Co. Atty., for the State.

SHERWIN, J.

In November, 1904, the defendant entered the home of Roland Diggs, in the city of Des Moines, and therein shot and killed Roland Diggs and Bud Travis, and shot and seriously wounded Mrs. Diggs, the wife of Roland Diggs. He was indicted for both murders, and was first tried on the indictment for the murder of Diggs. On that trial he was convicted of murder in the first degree, but the verdict was set aside by the trial court; and when he was again put on trial it was on the indictment charging the murder of Travis. He was convicted of murder in the first degree, and appeals.

The appellant's first contention is that the indictment is fatally defective because the name of the county attorney was signed thereto by his assistant, and he relies on sections 5281 and 5282 of the Code to sustain his contention. The statute does not require the signature of the county attorney to an indictment. Section 5281 does no more than to prescribe the substantial form of the indictment, and this court has held that the signature of the county attorney is not essential to the validity of an indictment. State v. Kovolosky, 92 Iowa, 498, 61 N. W. 223;State v. Ruby, 61 Iowa, 86, 15 N. W. 848;State v. Wilmoth, 63 Iowa, 380, 19 N. W. 249. Moreover, the record shows that the county attorney's name was signed by his assistant with full authority so to do, and this would be sufficient, were it necessary for the county attorney to sign the indictment. Code, § 303, expressly authorizes the appointment of deputies to assist in the discharge of the duties of the office.

Complaint is made of the overruling of a challenge to one of the trial jurors. After the ruling, the defendant waived one of his peremptory challenges, and he cannot now complain. State v. Tyler, 122 Iowa, 125, 97 N. W. 983;State v. Yetzer, 97 Iowa, 423, 66 N. W. 737.

The state gave the defendant due notice that it would call as a witness one Alec Sanders. Sanders had not appeared before the grand jury, and his name was not indorsed on the indictment. When the witness was put on the stand he gave his name as H. S. Sanders. Thereupon evidence was received as to the identity of H. S. and Alec Sanders, after which the objection to the witness was overruled. There was no error in permitting him to testify. There was evidence tending to show that he was known as and commonly called “Alec.” On the trial of the defendant for killing Diggs, he was a witness for the state, testifying substantially as he did on this trial, and was there addressed or referred to by the present counsel of the defendant as “Alec Sanders.” After a subpœna had been issued for him, a deputy requested him to accept service thereof; but he refused to do so, giving as a reason therefor that his name was not “Alec,” but “H. S.,” Sanders, and this circumstance he communicated to defendant's counsel some time before the trial. The fact that this same witness had testified on the trial of the defendant for killing Diggs, that he was the only Sanders who had been used as a witness, that the defendant knew what he would testify to, and that he had himself recognized the fact that he was known as “Alec Sanders,” clearly show that the defendant had information and knowledge as to the identity of the witness named in the notice. The purpose of the notice is to give to the accused knowledge of the testimony that will be given against him, so that he may prepare to meet it, and, when this is done, the statute has been complied with. State v. Dale, 109 Iowa, 97, 80 N. W. 208;State v. Ostrander, 18 Iowa, 435;State v. Anderson, 125 Iowa, 501, 101 N. W. 201;State v. Bernstien, 99 Iowa, 5, 68 N. W. 442.

Anna Becton, who was a witness for the state, was at the time of the shooting the wife of the defendant. Before the trial, however, she had been divorced from him. Her testimony was admissible. Code, § 4606, provides that neither husband nor wife shall be a witness against the...