State v. Clemons

9 Iowa 534 | Iowa | 1859

StocktoN, J.

The objection made to the evidence of Sampson was properly overruled. It was proper to permit the State to prove by parol testimony that the two indictments found and presented by the grand jury against Clemons were for the same offense. The record showed that the prosecuting attorney moved to have the first one found by the grand jury set aside for insufficiency, and the case recommitted to the grand jury to find a new indictment. The prosecuting attorney was thereupon allowed to state that the indictment to which the defendant was required to answer, was for the same offense charged in the indictment that had been set aside as informal.

The defendant could not however be allowed to prove by parol that the prisoner Willis Clemons was in attendance at the September term of the District Court, 1856, ready to answer to his recognizance. The appearance of the defendant must be shown by the record. The effect of the evidence would have been to contradict the record by parol evidence. The record shows that the said Willis Clemons being called at the September term to -answer the indictment against him according to the tenor of his recognizance, made default of his appearance. His appearance must be shown by evidence of as high a character as that which shows his default. It seems that the District Court held that the first indictment had.been regularly set aside, before the second one was found by the grand jury and presented to the court. This was a finding by the court on the evidence before it. As the. evidence on which the finding was made is not contained in the record, we have no means of reviewing it, and cannot say that the court was in error.

As the trial was by the court, no instructions were asked or given, and the court was not asked to give its decision in writing, stating the facts found and the conclusion founded thereon. Section 1773. The court adjudged that defendant did not show cause in excuse of the default of said Clemons and refused to set aside the default, and thereupon ordered the undertaking to be forfeited, and rendered judgment against the sureties for the amount of the bond.

We cannot say there was error in this judgment of the court. The error is not made to appear to us. It is shown that defendant at a subsequent term, came into court, and was arraigned and pleaded “ not guilty ” to an indictment against him. And at a still later term of the court, a cause of the State of Iowa v. Willis Clemons, was continued at the motion of the State, and the defendant required to enter into , a recognizance for his appearance at the next term without surety; and that at the same time an order was made by the court, that a recognizance entered into by Willis Clemons for his appearance to answer an indictment against him for seduction, be. released and canceled. There is nothing in the record, however, to. show, nor from which it can be inferred, that this was an indictment for the same offense of which the defendant was accused, before the justice Keith, nor that the recognizance now sued on was given in the same cause.

It was incumbent on the defendant to show this as part of the defence. The District Court deemed- the evidence of this fact, if any was offered, insufficient. There is nothing in the record from which we can say that this finding of the court was erroneous.

Judgment affirmed.