State v. Ottley

• Decision Date: 10 May 1910
• Citation: 147 Iowa 329,126 N.W. 334
• Parties: STATE v. OTTLEY.
• Court: Iowa Supreme Court

147 Iowa 329

126 N.W. 334

STATE

v.OTTLEY.

Supreme Court of Iowa.

May 10, 1910.

Appeal from District Court, Linn County; Milo P. Smith, Judge.

This is a prosecution for forgery. There was a verdict of guilty and judgment thereon. Defendant appeals. Reversed.J. C. Leonard, for appellant.

H. W. Byers, Atty. Gen., and Charles W. Lyon, Asst. Atty. Gen., for the State.

EVANS, J.

The defendant was indicted jointly with one Chrisler for forgery. Chrisler pleaded guilty, and became a witness for the state as against his codefendant, Ottley. The alleged forgery consisted of the making of a note for $80 and signing the name of one A. C. Wilcox thereto. The actual signing was done by Chrisler alone. The note was signed for the purpose of securing a loan from one Lawler. To secure the note, Chrisler executed at the same time a chattel mortgage on a buggy belonging to Ottley and a horse belonging to one Heffner, both of which were temporarily in his possession at the time the note and mortgage were made. Chrisler testified that this was all done in pursuance of an arrangement between him and Ottley, whereby Chrisler was to obtain the money for Ottley in this manner. He obtained a check from Lawler from the proceeds of the loan, and turned the check over to Ottley according to his testimony. Many circumstances were put in evidence by the state tending to corroborate the testimony of Chrisler in this respect. Lawler insisted that the wife of Wilcox should sign the mortgage. Thereupon Chrisler procured one Margaret Morris to impersonate such person, and to join with him in the execution of the chattel mortgage, and to sign the same as Margaret Wilcox, the purported wife of A. C. Wilcox. Chrisler testified that this also was done after a consultation with Ottley on the subject, and in pursuance of the plan then mutually agreed upon. The case is presented here upon 10 errors relied on for reversal.

1. The first five points relied on are so closely related that we will consider them together. It appears from the record that when the indictment was returned, the purported minutes of the evidence heard before the grand jury were attached to the same. The clerk, however, applied his filing mark upon the indictment only. That is to say, he did not place a filing mark upon the particular sheets of paper which contained the minutes of the evidence. It also appears that the minutes of evidence as thus returned contained no affirmative statement that the witnesses were sworn, nor did these minutes purport to be signed by the witnesses. It is contended by the defendant, in effect, that the failure of the clerk of the grand jury to include in the minutes of the evidence a statement that the witnesses were sworn was fatal to the indictment. The same claim is made with reference to the failure of the witnesses to sign the minutes of their evidence, and also with reference to the failure of the clerk to enter a separate filing mark upon the minutes of the evidence as distinguished from the indictment. None of these points are well taken. Section 5254, Code, provides that an “indictment can be found only upon evidence given by witnesses produced, sworn, and examined before the grand jury,” etc. Under this section of the statute, it was the duty of the grand jury to put all witnesses examined before it under oath. But there is no provision of the statute which requires the grand jury to make an affirmative showing in the minutes of evidence presented that the witnesses were sworn. The omission to make such affirmative statement in the minutes of the evidence was therefore not available to the defendant as ground for dismissing the prosecution upon motion at the close of the evidence. This is the only manner in which the question was raised. State v. Easton, 113 Iowa, 516, 85 N. W. 795, 86 Am. St. Rep. 389;State v. De Groate, 122 Iowa, 661, 98 N. W. 495. Nor was the fact that witnesses failed to sign their testimony fatal to the indictment. We have heretofore held that the requirement of section 5258 in this regard is directory rather than mandatory. State v. O'Malley, 132 Iowa, 696, 109 N. W. 491.

As to the point that the clerk failed to place a filing mark upon the sheets containing the minutes of evidence, this is also without merit, as has been frequently held heretofore. The minutes of the evidence were attached to the indictment, and one filing mark was sufficient for the whole. State v. Doss, 110 Iowa, 713, 80 N. W. 1069;State v. Cross, 95 Iowa, 629, 64 N. W. 614;State v. Craig, 78 Iowa, 637, 43 N. W. 462;State v. Briggs, 68 Iowa, 416, 27 N. W. 358.

2. The next complaint is that the alleged forged note was used as an exhibit before the grand jury, and that it was not filed as an exhibit with the clerk. Section 5258 requires that the exhibits be filed with the clerk. Granting that the note in question should have been filed with the clerk as an exhibit, and that it was not so filed, this failure was not a ground for setting aside the indictment. State v. O'Malley, 132 Iowa, 696, 109 N. W. 491. Nor would such failure render the note inadmissible in evidence. State v. Mulbern, 130 Iowa, 46, 106 N. W. 267;State v. Mullenhoff, 74 Iowa, 271, 37 N. W. 329;State v. Boomer, 103 Iowa, 106, 72 N. W. 424. Indeed, it does not appear from this record whether the note was filed by the clerk or not. Assuming that it was not, no complaint was ever made by the...