State v. Olds

Citation76 N.W. 644,106 Iowa 110
PartiesSTATE v. OLDS.
Decision Date04 October 1898
CourtUnited States State Supreme Court of Iowa

OPINION TEXT STARTS HERE

Appeal from district court, Dallas county; J. A. Story, Judge.

The defendant was convicted of the crime of forgery, and from a judgment which required that he be imprisoned in the state penitentiary at Ft. Madison for the term of three years, and pay the costs taxed in the case, he appeals. Affirmed.Shortley & Harpel, White & Clark, and H. A. Hoyt, for appellant.

Milton Remley, Atty. Gen., and Edmund Nichols, for the State.

ROBINSON, J.

The defendant is accused of the crime of forging a negotiable promissory note for the sum of $500, which purported to be the note of J. K. Myers and Myer E. Myers. It is averred that by the name last given the defendant meant Mary E. Myers, the wife of J. K. Myers.

1. It is claimed in behalf of the state that the defendant made several loans of money for one A. Bohner, and that he applied to Bohner to make a loan to J. K. Myers, and stated that Myers and his wife would give their note for the amount; that Bohner agreed to make the loan, drew the required amount of money from a bank, and paid it to the defendant, receiving from him in exchange the note in question. Bohner, having testified that he loaned money and bought horses, checking the money from the bank, sometimes making the checks payable to himself and sometimes to others; that he did not have the check on which he drew the money for the note in question; and that the checks were returned to him, and generally destroyed,--was asked, “Why did you destroy them?” An objection to the question was sustained, and of that ruling the appellant complains. We think it was correct. Bohner's reasons for destroying the checks after they had been paid and returned to him were wholly immaterial. The question was not confined to the check used to procure money for the note in controversy, and there is no suggestion in the record that it was destroyed for an improper purpose.

2. During the trial of the cause the state offered in evidence a transcript of the official shorthand reporter's notes of the testimony given on a former trial of the cause by Marshall D. Ewell. In connection with the offer the statement was made that the “evidence is offered under the stipulation and terms provided in the continuance of this cause at the last term of court.” The defendant objected to the introduction of the evidence “for the reason that it is incompetent, the stipulation referred to not relating to any use of the testimony in this case, and the statute provides that the defendant shall be confronted with the witnesses on his trial.” The objection was overruled, and the evidence was admitted. It appears that there have been several trials of this cause. The last one was commenced in April, 1896. At the November term, 1895, the defendant applied for a continuance of the cause. The court found the application to be insufficient in law, but in consideration of the condition of the defendant, the engagement of counsel in other courts, the business of the court, and the early day at which it was required to adjourn, and in the furtherance of justice, continued the cause upon the following, among other, terms and conditions, to wit: “That the personal presence of any witness or witnesses who were examined and testified on the trial of the case of the State of Iowa against J. K. Olds, No. 739, criminal, in this court, which was tried at the November term, A. D. 1894, of this court, is waived by the defendant, and defendant expressly consents that upon the trial of this case at any time hereafter the testimony of any such witness or witnesses as taken by and reduced to writing by the official shorthand reporter at the time thereof may be read in evidence on the trial of this cause, and shall have the same force and effect as if such witness or witnesses were personally present at the time of the trial, and orally examined before the jury, and such testimony may be read to the jury, either from a certified transcript of the testimony of such witness or witnesses, or may be read by the official shorthand reporter taking the same from the notes. * * * To all which the defendant in person and by counsel, in open court, voluntarily agrees thereto, and accepts such terms, and upon the acceptance of the conditions imposed it is ordered that this cause be continued until the next term of this court. * * *” The record we have set out is signed by one of the judges of the judicial district of which Dallas county was a part, and is contained in an additional abstract filed by the state, and is shown by the transcript. The appellant contends in this court that the record we have set out was not introduced in evidence in the district court, and denies that any evidence was offered to show that the transcript read was a transcript of the testimony of Ewell given on a trial of this cause. It is evident that the objections thus urged are purely technical, and made for the first time in this court. The appellant now relies upon the failure of the record to show that the matter we have set out was formally introduced in evidence, or that formal proof was offered to show that the transcript read was a transcript of the evidence which Ewell gave on a trial of this cause. It will be noticed that these alleged defects were not presented by the objection made in the district court. That objection was based upon the alleged ground that the transcript offered was incompetent, that the statute provided that the defendant should be confronted on the trial by the witnesses against him, and that the stipulation did not provide for the use of the testimony in this case. Whether the transcriptwas admissible in evidence was a preliminary matter, to be determined by the court. For that purpose the court was authorized to take judicial notice of the record in this case, and of the stipulation thereby shown, and it was not necessary to make formal proof of such record and stipulation. It is true that it is the right of the defendant in a criminal prosecution to be confronted on the trial by the witnesses against him, but it is a right which may be waived by him, and the testimony of the witnesses, in writing, be received. State v. Fooks, 65 Iowa, 452, 21 N. W. 773;State v. Polson, 29 Iowa, 133. The order of the court to which the parties agreed provided for the transcript of testimony which was received in evidence, and the court did not err in receiving it.

3. The sixth paragraph of the charge to the jury is as follows: “Testimony has been introduced to impeach certain witnesses in this case, tending to show that their reputation for truth and veracity is bad; also that their general moral character is bad. Testimony has also been introduced tending to sustain their reputation for truth and veracity, and their general moral character. You are to consider such testimony as bearing on the credibility of such witnesses, but you should not, for such reason alone, disregard their testimony, especially in those particulars, if any, where they are corroborated by other credible witnesses, or by facts and circumstances proven by the evidence in the case. You are to consider all their testimony in the light of, and in connection with, all the other evidence and circumstances disclosed in the case, and give to the evidence of said witnesses such credibility as you may deem it entitled to receive.” The defendant testified as a witness, and testimony was introduced which tended to show that his reputation for truth and veracity and his moral character were bad, while other testimony tended to show that they were good. Similar testimony was given respecting other witnesses. The appelant...

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6 cases
  • State v. Peirce
    • United States
    • United States State Supreme Court of Iowa
    • November 17, 1916
    ...does not indicate what happened after the additional instruction was given; and while the circumstances were so different in State v. Olds, 106 Iowa 110, 76 N.W. 644, as to that case of little value on the present controversy, Niles v. Sprague, 13 Iowa 198, Frandsen v. Chicago, R. I. & P. R......
  • State v. Peirce
    • United States
    • United States State Supreme Court of Iowa
    • November 17, 1916
    ...not indicate what happened after the additional instruction was given, and while the circumstances were so different in State v. Olds, 106 Iowa, 111, 76 N. W. 644, as to make that case of little value on the present controversy, Niles v. Sprague, 13 Iowa, 198,Frandsen v. Railway, 36 Iowa, 3......
  • State v. Jackson
    • United States
    • United States State Supreme Court of Iowa
    • March 16, 1972
    ...248 Iowa 1346, 1350--1351, 85 N.W.2d 514, 517; Fagen Elevator v. Pfiester, 244 Iowa 633, 641, 56 N.W.2d 577, 581; State v. Olds, 106 Iowa 110, 119, 76 N.W. 644, 647--648; State v. Cross, 95 Iowa 629, 633, 64 N.W. 614, 616; 58 Am.Jur.2d, New Trials, § 76, pp. 266--267; 66 C.J.S. New Trial § ......
  • State v. Bogardus
    • United States
    • United States State Supreme Court of Iowa
    • February 16, 1920
    ...cases to sustain the instruction: State v. Lawrence, 38 Iowa, 51, 57;State v. Hale, 91 Iowa, 367, 370, 59 N. W. 281;State v. Olds, 106 Iowa, 110, 117, 76 N. W. 644;State v. Tripp, 113 Iowa, 698, 708, 84 N. W. 546;State v. Richardson, 137 Iowa, 591, 594, 115 N. W. 220;Burton v. Neill, 140 Io......
  • Request a trial to view additional results

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