Herring v. State

| Iowa | Jun 15, 1855

Isbell, J.

Tbe first and second specifications of error are not sustained by tbe record. A bill of exceptions was taken to tbe overruling of a motion for a new. trial. Tbe motion for a new trial is copied into tbis bill. Tbe motion so copied, alleges that certain instructions were given, but tbe effect of tbis bill is only that tbe motion was filed and overruled, and not that tbe facts alleged in that motion, existed.

With regard to tbe third specification, it appears that, after tbe jury bad been out for some time, finding that they could not agree on tbe testimony of certain witnesses, they returned into court, and witness Weston was called. Tbe jury were told to examine him, and counsel for both parties were refused tbe right to interrogate tbe witness, after be bad repeated bis testimony on tbe trial. Tbe counsel for tbe state and defendant got into a controversy, or dispute, about tbe testimony of tbe witness, whereupon tbe court stated to tbe defendant’s counsel, tbe state, and tbe jury, that “ tbe witness bad before sworn, that it was within the year that tbe liquor was sold, and was so down on bis minutes.” Whereupon, counsel again insisted on questioning tbe witness, which tbe court again refused, ruling that it was for tbe jury alone, to inquire of tbe witness as to bis testimony. Although tbis was not a proper altercation to be carried on in court, in presence of tbe jury, we cannot ‘see that there is anything in tbe record that resembles instructing tbe jury on tbe facts; neither is there anything which makes it apparent that what the court said, was not true. Besides, the witness was still in court, and full leave given to the jury to interrogate him. As to the refusal, .on 'the part of the court, to allow counsel for either party to interrogate the witness in that stage of the proceeding, leaving it for the jury, for whose satisfaction alone the witness was called, so to do, under the supervision of the court, we -do not see any good ground of error. We think it would be presuming too much on the ignorance of the jury, to suppose that they were misled by this side-bar altercation; ■and that the refusal to allow counsel to interrogate the witness, was within the discretion of the court.

The fourth specification -of error stands very much on the same ground as the first and second. The fact that a motion for a new trial was made, which recites certain facts, and which was overruled, is clear. But the court has nowhere certified that any of the facts contained in that motion existed, except the facts in relation to the recalling of the witness Weston, which has just been disposed of; and these we do not regard as sufficient to justify the granting of a new trial, without showing that the jury were, in fact, misled by the declarations of the court in their presence.

The fifth specification is grounded on the fact, that no -entry was made, in the books of record of the court, of the finding of the indictment, until long after it was found, and then made in accordance with the indorsement on the in•dictment. We do not regard this as error. The -indictment was properly indorsed, and this indorsement was itself a ■record, and the only record that should appear until after -the arrest. See Code, §§ 141 and 1977, and Wrocl&lcge v. The State, ante, 167. The making of a record in the books, from the indictment, could not impair the proceéd-ings. As the motion in arrest was based on this last supposed error, this disposes of the sixth specification.

■Judgment affirmed.