State v. Rodman

• Decision Date: 12 December 1883
• Citation: 17 N.W. 663,62 Iowa 456
• Parties: STATE v. RODMAN
• Court: Iowa Supreme Court

17 N.W. 663

62 Iowa 456

STATE v. RODMAN

Supreme Court of Iowa, Des Moines

December 12, 1883

Appeal from Poweshiek District Court.

DEFENDANT was convicted of the larceny of a horse, and sentenced to the penitentiary for three years. He now appeals to this court.

AFFIRMED.

Redman Carr & Farmer and Stivers & Louthan, for appellant.

Smith McPherson, Attorney-general, for the State.

OPINION

BECK, J.

I.

The indictment in the case was found upon the evidence contained in the minutes of the testimony taken by a magistrate, by whom the defendant was committed for the offense for which he was indicted. Upon the trial, the defendant objected to the testimony of a witness whose name was indorsed upon the indictment, upon the ground that he had not testified before the grand jury. The objection was overruled and this action of the district court constitutes the first ground of objection urged upon our attention.

Code, § 4421, provides that in a criminal case the state cannot introduce a witness against defendant who was not examined before the grand jury, and the minutes of whose evidence there given was not presented with the indictment. Section 5, Chapter 130, Acts Eighteenth General Assembly, (Miller's Code § 4289,) provides that an indictment may be found by the grand jury upon the minutes of the testimony taken, reduced to writing and returned to the district court, as required by Code, § § 4241 4242, 4253, and witnesses need not be personally examined before the grand jury. This enactment supersedes Code, § 4421, so far as it requires a witness, whose testimony has been reduced to writing and returned by the committing magistrate, to be personally examined before the grand jury. The written examination takes the place of the oral testimony. So far Code, § 4421, is modified by the subsequent statute.

II. Counsel of defendant complain of an instruction, on the ground that it holds that the failure of defendant to testify in his own behalf should be taken as proof of his guilt. No instruction to this effect was given. The objection under consideration is based upon a misconstruction of the familiar rule, presented in an instruction, to the effect that, if defendant failed to introduce proof which he ought to have done, explaining facts or circumstances established by the evidence which operated against him, it is a circumstance to be considered in reaching a conclusion as to his guilt, and that, if evidence within the power of the defendant, and not accessible to the state, is withheld by the defendant, the jury are authorized to infer that, if produced, it would be against defendant. This instruction could not have been understood by the jury to apply to his failure to testify in his own behalf.

III. The court instructed the jury that an attempt by defendant to escape while held in custody for the offense, if found from the evidence, should be considered as tending to establish guilt, and that contradictory statements as to the manner of the acquisition of the possession of the property, if proved should...