State v. Turner

• Decision Date: 02 October 1901
• Citation: 114 Iowa 426,87 N.W. 287
• Parties: STATE v. TURNER ET AL.
• Court: Iowa Supreme Court

114 Iowa 426

87 N.W. 287

STATE

v.TURNER ET AL.

Supreme Court of Iowa.

Oct. 2, 1901.

Appeal from district court, Lee county; Henry Bank, Jr., Judge.

The defendants were indicted, tried, and convicted of the crime of breaking and entering a store building, and judgment of imprisonment in the penitentiary rendered against them, from which judgment they appeal. Affirmed.D. D. Harrington and R. M. Harrington, for appellant.

C. W. Mullan, Atty. Gen., and C. A. Van Vleck, Asst. Atty. Gen., for the State.

GIVEN, C. J.

1. This case is submitted upon an agreed statement, in substance as follows: Defendants were charged with the crime of breaking and entering a store building before the judge of the superior court of the city of Keokuk sitting as an examining magistrate. It was agreed between the parties that the minutes of the testimony should be taken in shorthand by the official reporter of that court, and transcribed into longhand. For some reason that does not appear, the testimony was taken, transcribed, and certified to, without objection, by one J. A. West. The defendant Turner was released, and the defendant Macey was held to the grand jury. A transcript of the proceeding, duly certified, and a transcript of the evidence, certified to be true and correct by Mr. West, were duly filed with the clerk of the district court, and referred to the grand jury. The grand jury, upon said transcript of the evidence and of witnesses examined before it, returned the indictment against the defendants, and therewith said transcript of the evidence, but no minute thereof made by the clerk of the grand jury. On the trial in the district court, the state was permitted, over defendants' objection, to examine the witnesses who had been examined before the magistrate; no notice having been given that they would be examined. Defendants contend that, as the minutes of the evidence before the magistrate were not taken by the official reporter, as agreed, and as the transcript made by Mr. West was not certified by the magistrate, the defendants were indicted upon insufficient and illegal evidence, and that the grand jury had no lawful right to find an indictment based in whole or in part upon said transcript of the evidence before the examining magistrate. They also contend that, for these reasons, and the further reason that the transcript of said evidence, and not a minute thereof, was returned by the grand jury with the indictment, the court erred in permitting the witnesses examined before the magistrate to testify on the trial. Section 5227 of the Code authorizes the magistrate, by agreement of parties, to order the examination taken in shorthand and...