State v. Wiltsey

• Decision Date: 08 October 1897
• Citation: 72 N.W. 415,103 Iowa 54
• Parties: STATE v. WILTSEY.
• Court: Iowa Supreme Court

103 Iowa 54

72 N.W. 415

STATE

v.WILTSEY.

Supreme Court of Iowa.

Oct. 8, 1897.

Appeal from district court, Kossuth county; Lot Thomas, Judge.

The defendant was indicted for the crime of adultery committed with Rose Shadle, the wife of L. K. Shadle. He was convicted, and sentenced to be confined in the penitentiary for one year. He appeals. Reversed.D. C. Chase and Sullivan & McMahon, for appellant.

Milton Remley, Atty. Gen., for the State.

KINNE, C. J.

1. Between the time of the drawing of the grand jury which found this indictment and the time the indictment was returned, the law touching the selection of grand jurors was changed, and said new act took effect July 1, 1895. The indictment was found in October, 1895. A challenge to the panel of the grand jury was interposed on the ground that said panel was not appointed, drawn, and summoned as prescribed by law. The challenge was not allowed. The ruling was correct. State v. Graff (Iowa) 66 N. W. 779.

2. Defendant made a motion for a continuance on the ground of the absence of a witness named Dahl on account of sickness. The state having admitted that the witness, if present, would testify as stated in the affidavit, the motion was overruled, and the defendant excepted. Upon the trial the defendant read said affidavit to the jury. He now claims that under the constitution he was entitled to the personal attendance of the witness, or to a continuance. Our statute provides that “the rules of evidence prescribed in the civil part of the Code, shall apply to criminal proceedings as far as applicable and as they are not inconsistent with the provisions of this chapter.” Code 1873, § 4556. Under Code 1873, § 2751, if the application be sufficient, the cause must be continued unless the adverse party will admit that the witness, if present, would testify to the facts therein stated, in which event the cause shall not be continued, but the party may read as evidence of such witness the facts held by the court to be properly stated. True it is that the defendant has, by virtue of the constitution, the right to have compulsory process for his witnesses. That right he had in this case. On account of the sickness of the witness, such process did not avail to bring the witness into court; but the defendant was not thereby deprived of his constitutional right. In State v. Kennedy, 20 Iowa, 372, it was held that a defendant had no absolute right, under this provision of the constitution, to insist upon the personal attendance of a witness who was a convict in the state penitentiary. In principle, that case is controlling in the case at bar. There was no error in the court's ruling.

3. The serious question in this case is as to the...