State v. Porter

CourtUnited States State Supreme Court of Iowa
Citation38 N.W. 514,74 Iowa 623
PartiesSTATE v. PORTER.
Decision Date07 June 1888

OPINION TEXT STARTS HERE

Appeal from district court, Webster county; D. D. MIRACLE, Judge.

Indictment for murder in the first degree. Trial by jury Verdict, guilty of manslaughter; and judgment thereon. Defendant appealed.M. D. O'Connell and Dolliver & Moore, for appellant.

A. J. Baker, Atty. Gen., for the State.

SEEVERS, C. J.

1. Mary Blakely was introduced as a witness for the state. Her name was indorsed on the back of the indictment, but she was not examined as a witness before the grand jury. She wrote a statement of what she would testify to, and sent that to the grand jury, and the same was attached to the indictment, and purported to be evidence taken before such jury. The defendant objected to the witness' testifying, because she had not been examined by or testified before the grand jury. The objection was overruled, and the defendant excepted. It is provided by statute that the state “shall not be permitted to introduce any witness who was not examined before the grand jury, and whose evidence was not taken down by the clerk of the grand jury, and presented with the indictment.” Code, § 4421. As Mrs. Blakely was not a witness before the grand jury, the court ignored and disregarded the express words of the statute, and erred, we think, to the defendant's prejudice. It is impossible to know the effect the statement made by Mrs. Blakely, not under oath, had upon the grand jury. If she had been examined before such jury, her evidence might have been so materially different from the statement that no indictment would have been found. Besides this, a disregard of the material portion of the statute, which is of a mandatory character, must be conclusively presumed to be prejudicial.

2. Ira Vail was examined as a witness on the part of the state, and gave evidence tending to show that the defendant, in a conversation, had made certain statements of a material character. The defendant introduced evidence tending to show that Vail, on more than one occasion, denied the defendant had made any such statements. The state in rebuttal, against the objection of the defendant, was permitted to prove by the wife of said Vail that he had told her, shortly after or before the homicide, that the defendant had made such statements. That a witness may be impeached by showing that he made statements out of court contradictory to his evidence as a witness is the well-settled rule; but evidence that he had made such statements for the purpose of corroborating his evidence as a witness is not, we think, admissible. We are of the opinion that there is no authority which supports the ruling of the court, and upon principle we think it cannot be sustained, for the reason the evidence is clearly hearsay.

3. Prior to finding the indictment under consideration, and at a previous term of court, a grand jury investigated and made efforts to ascertain who had killed the deceased, but no indictment was found. Witnesses were examined, and, among others, one Hollis, who had deceased prior to the trial, who gave evidence before the grand jury; but there is no evidence tending to show that any attorney representing the state was present at the time. The defendant offered to prove by one of the grand jurors what said witness testified to before such jury. To this the state objected, and the objection was sustained. In so holding we do not believe the court erred. This is a case of first impression. No authority has been cited in favor of or against the ruling of the court. That evidence of a deceased witness given on a trial may be shown on a...

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5 cases
  • State v. La Bar
    • United States
    • Minnesota Supreme Court
    • December 17, 1915
    ...v. People, 18 Colo. 373, 33 Pac. 159,25 L. R. A. 341, 36 Am. St. Rep. 295;Cook v. State, 124 Ga. 653, 53 S. E. 104;State v. Porter, 74 Iowa, 623, 38 N. W. 514;Chicago, etc., v. Matthieson, 212 Ill. 292, 72 N. E. 443;Edwards v. Commonwealth, 145 Ky. 560, 140 S. W. 1046; Ware v. Ware, 8 Green......
  • State v. Bar
    • United States
    • Minnesota Supreme Court
    • December 17, 1915
    ... ... Doyell, 48 Cal. 85; Mason v ... Vestal, 88 Cal. 396, 26 P. 213, 22 Am. [131 Minn. 434] ... St. 310; Davis v. Graham, 2 Colo.App. 210, 29 P ... 1007; Connor v. People, 18 Colo. 373, 33 P. 159, 25 ... L.R.A. 341, 36 Am. St. 295; Cook v. State, 124 Ga ... 653, 53 S.E. 104; State v. Porter, 74 Iowa 623, 38 ... N.W. 514; Chicago City Ry. Co. v. Matthieson, 212 ... Ill. 292, 72 N.E. 443; Edwards v. Commonwealth, 145 ... Ky. 560, 140 S.W. 1046; Ware v. Ware, 8 Me. 42; ... Commonwealth v. Jenkins, 10 Gray (Mass.) 485; ... Commonwealth v. Tucker, 89 Mass. 457, 76 N.E. 127, 7 ... ...
  • McDonnell v. Henderson
    • United States
    • Iowa Supreme Court
    • June 7, 1888
  • State v. Porter
    • United States
    • Iowa Supreme Court
    • June 7, 1888
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