State v. Ottley

CourtUnited States State Supreme Court of Iowa
Writing for the CourtEVANS
Citation147 Iowa 329,126 N.W. 334
PartiesSTATE v. OTTLEY.
Decision Date10 May 1910

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.

[126 N.W. 334]

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

[126 N.W. 335]

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...

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9 practice notes
  • State v. Burris, No. 35774.
    • United States
    • United States State Supreme Court of Iowa
    • April 4, 1924
    ...that the failure to so return the exhibits was not a ground for motion to set aside the indictment. In State v. Ottley, 147 Iowa, 329, 126 N. W. 334, the question came before us where, on motion to set aside the indictment, it was contended that an exhibit used before the grand jury was not......
  • McAffee v. United States, No. 7071.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 28, 1939
    ...reasonable doubt." The reversal was upon the authority of Spear v. United States, supra. See also upon this subject State v. Ottley, 1910, 147 Iowa 329, 333, 126 N.W. 334, The defendant's Prayer No. 9 was as follows: "If you believe beyond a reasonable doubt that the defendant is guilty of ......
  • State v. Frommelt, No. 52834
    • United States
    • United States State Supreme Court of Iowa
    • June 11, 1968
    ...with no guarantee of strict accuracy. In this regard we point out section 771.12 is not mandatory but directory only. State v. Ottley, 147 Iowa 329, 126 N.W. We have always held testimony before a grand jury, if contradictory of what the witness later testifies to on a material matter, may ......
  • Dillard v. State, No. CR--76--140
    • United States
    • Supreme Court of Arkansas
    • December 13, 1976
    ...792 (1967); Spear v. U.S., 228 F. 485, 143 CCA 67 (8 Cir. 1915), cert. den. 246 U.S. 667, 38 S.Ct. 335, 62 L.Ed. 929; State v. Ottley, 147 Iowa 329, 126 N.W. 334 (1910); State v. Kimes, 145 Iowa 346, 124 N.W. 164 (1910). See also, Heard v. U.S., 228 F. 503, 143 CCA 85 (8 Cir. 1915); State v......
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9 cases
  • State v. Burris, No. 35774.
    • United States
    • United States State Supreme Court of Iowa
    • April 4, 1924
    ...that the failure to so return the exhibits was not a ground for motion to set aside the indictment. In State v. Ottley, 147 Iowa, 329, 126 N. W. 334, the question came before us where, on motion to set aside the indictment, it was contended that an exhibit used before the grand jury was not......
  • McAffee v. United States, No. 7071.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 28, 1939
    ...reasonable doubt." The reversal was upon the authority of Spear v. United States, supra. See also upon this subject State v. Ottley, 1910, 147 Iowa 329, 333, 126 N.W. 334, The defendant's Prayer No. 9 was as follows: "If you believe beyond a reasonable doubt that the defendant is guilty of ......
  • State v. Frommelt, No. 52834
    • United States
    • United States State Supreme Court of Iowa
    • June 11, 1968
    ...with no guarantee of strict accuracy. In this regard we point out section 771.12 is not mandatory but directory only. State v. Ottley, 147 Iowa 329, 126 N.W. We have always held testimony before a grand jury, if contradictory of what the witness later testifies to on a material matter, may ......
  • Dillard v. State, No. CR--76--140
    • United States
    • Supreme Court of Arkansas
    • December 13, 1976
    ...792 (1967); Spear v. U.S., 228 F. 485, 143 CCA 67 (8 Cir. 1915), cert. den. 246 U.S. 667, 38 S.Ct. 335, 62 L.Ed. 929; State v. Ottley, 147 Iowa 329, 126 N.W. 334 (1910); State v. Kimes, 145 Iowa 346, 124 N.W. 164 (1910). See also, Heard v. U.S., 228 F. 503, 143 CCA 85 (8 Cir. 1915); State v......
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