State v. Russell

Citation68 N.W. 433,98 Iowa 652
Decision Date06 October 1896
CourtUnited States State Supreme Court of Iowa


Appeal from district court, Boone county; D. R. Hindman, Judge.

Indictment for rape. Verdict for an assault with intent to commit rape, and the defendant appealed. Reversed.Jordan & Brockett, for appellant.

Milton Remley, Atty. Gen., and Jesse A. Miller, for the State.


Dr. De Tar was called as a witness for the state, and was objected to by the defendant, because his name was not indorsed on the indictment, and the minutes of his testimony were not presented with the indictment. The court permitted the examination on a showing that notice had been served on defendant's attorney having charge of the case. The following is a part of section 4421 of the Code: “The district (county) attorney, in offering the evidence in support of the indictment * * * shall not be permitted to introduce any witness who was not examined before the grand jury, and the minutes of whose testimony was not taken by the clerk of the grand jury and presented with the indictment to the court, unless he shall have given to the defendant a notice in writing, stating the name, place of residence and occupation of said witness, and the substance of what he expects to prove by him on the trial, at least four days before the commencement of such trial. * * *” Appellant urges that it was error to permit the witness to be examined without notice having been given to the defendant personally. It will be seen that the statute forbids the introduction of such witnesses unless the county attorney has given to the defendant notice in writing, etc. It is for us to say whether such a notice to the attorney for the defendant entitles the state to the same right. One reason urged in behalf of the state is that no prejudice resulted because of the service made; that, had the same service been made on the defendant personally, he would have taken the notice to the attorney. If we look only at what might be a good rule of law, we might concur. But, suppose the notice had not been in writing, but verbal, with even an affirmative showing of no prejudice, would it then be thought that the witness could be introduced? It would not then be claimed, because the statute defines the kind of notice to be given. It is not enough to give a notice that is just as good; it must be in substantial compliance with the statute. This right to introduce such a witness is an exception to the general rule...

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2 cases
  • State v. Moline
    • United States
    • United States State Supreme Court of Iowa
    • January 14, 1969
    ...held that the provision for giving notice under this section means it shall be served personally on the defendant. State v. Russell, 98 Iowa 652, 654, 68 N.W. 433, 434. Subsequent to that decision the statute was amended to provide for service of notice upon defendant's attorney in the even......
  • State v. Russell
    • United States
    • United States State Supreme Court of Iowa
    • October 6, 1896

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