State v. Craig
43 N.W. 462
Iowa
1889
Check Treatment
Granger, J.

The indictment contains several counts, and each count charges the sales as having been made by one Elijah Stearns, as agent for the defendant, *639and each count also charges the sales to some particular person, and several еrrors are assigned as to the proceedings in the district court.

witnesses: fiimonygwena jury: entry in appearance docket. I. Complaint is made that, of the witnesses used by the state who were еxamined before the grand jury,' some were used without their testimony having been filed m the case, and no statemént of the filing of such minutes was entered on the appearance docket. The . x. minutes of the testimony of such witnesses were delivered to the clerk with thе indictment, and kept there as a part of the record. These minutes ‍​​‌‌​‌​​‌‌‌‌​​​​‌‌​‌‌​‌‌​​‌​‌‌​​​‌​‌​​​​​​‌​‌​​​‍of testimony bore, as evidence of the filing, a stamp impression with the name of the clerk, designation of office as “Clerk, Henry county, Iowa,” and over the signature and date were the words “Clerk of district court,” and the word “Filed.” The minutes in the appearance docket show the filing of the indictment, but contain no rеference to the minutes of the testimony. The points made in argument are: First, that the filing should show the signature of the clerk of the district сourt, and, second, that the filing should be evidenced by an ’ entry on the appearance docket. As to the first point, we can say on аuthority that the testimony was filed when delivered to the clerk to be kept as a part of the record, and such filing need not be еvidenced by an endorsement. While the endorsement is advisable, it is not absolutely required. State v. Briggs, 68 Iowa, 416; State v. Guisenhause, 20 Iowa, 227. As to the second point, counsel for appellant have not favored us with their reasoning or a reference to authorities; and our reflections lead us to consider the effect of section 200 of the Code, where there is a failure to make a memorandum in the appearance docket of the filing of such a paper. It ‍​​‌‌​‌​​‌‌‌‌​​​​‌‌​‌‌​‌‌​​‌​‌‌​​​‌​‌​​​​​​‌​‌​​​‍must be conceded that the language of the section is broad enough to require the memorandum of the filing of the minutes of the testimony, as, after specifying pleadings and motions, it has the words, “or papеr of any other description in the cause;” and then we have the words, “and no pleading of any *640description shall be considеred as filed in the cause * * * until the said memorandum is made.” The minutes of the testimony are not a pleading of any description. Code, sec. 2645. This point in the case is controlled by the holdings in Byington v. Moore, 62 Iowa, 470, and Royer v. Foster, 62 Iowa, 321. The failure to make the memorandum in the appearance doсket does not deprive the state of the use of the witnesses examined before the grand jury, where the minutes are filed with the clеrk.

2.-; witnesses not named m indictment. II. Certain witnesses whose names do not appear on the indictment were examined ‍​​‌‌​‌​​‌‌‌‌​​​​‌‌​‌‌​‌‌​​‌​‌‌​​​‌​‌​​​​​​‌​‌​​​‍in the trial for the state, and appellant urges the point as error. ’ . ** , ° , f. The minutes of their testimony were . returned by the grand jury with the indictment. The indictment was not assailed becausе of this defect. It was not error to permit the examination of the witnesses. State v. Fowler, 52 Iowa, 103; State v. Flynn, 42 Iowa, 164,

3__: witnesses not before grand jury; onanoSoe?n limitations, III. Thе state, desiring to use a witness not-examined before the grand jury, served notice, under ^he provisions of Code, section 4421, that it would introduce one Broad well, and prove by h™- that saw Stearns pay over to defendant money in the Brazelton House, etc. Afterwards the state recalled the witness, and examined him as to receiving beer and whiskey from defendant; and defendant urges that the statе should have been confined in the examination to the subject-matter of the notice. When such a witness is to be used, the law ‍​​‌‌​‌​​‌‌‌‌​​​​‌‌​‌‌​‌‌​​‌​‌‌​​​‌​‌​​​​​​‌​‌​​​‍requires that, among other things, the defendant shall have notice in writing of the substance of what the state expects to prove by him; and wе are not advised of a different object of such a notice than for the minutes of the testimony to be filed where the witness is exаmined before the grand jury. In the latter case the law requires “the minutes * * * of the evidence given before it” to be taken and presented with the indictment to the court, and to be kept as a record. Code, secs. 4275, 4293. In such a case the state is not *641limited in its examination to the points that appear in the reported minutes of the evidence, but may examine as to other material matters. State v. McCoy, 20 Iowa, 262; State v. Ostrander, 18 Iowa, 435; State v. Bowers, 17 Iowa, 46. We see no reason why these authorities-should not control the question under consideration, and, following them, we think the сourt did not err in admitting the testimony.

' ñeJsésTwrong mdiotment: error cured. IY. One T. B. Ross was examined as a witness for the state. The name “Burr Ross” was on the indictment, but not T. B. Ross. One count of the indictment charged sales to Burr Ross, and the testimony of T. B. Ross was as ‍​​‌‌​‌​​‌‌‌‌​​​​‌‌​‌‌​‌‌​​‌​‌‌​​​‌​‌​​​​​​‌​‌​​​‍to , ,, ,, that count of the indictment, and no other. The court aftеrwards instructed the jury to find for defendant on that count, which was done, and there could be no prejudicial error from such a state of facts.

_ . during1 Id-or nograuSafor reversal. Y.- W. S. Browning was one of the jurors who tried the indictment, and as to him George W. Fluke filed his affidavit as follows : “That during ^Ie time said cause was on trial, and while ^ was Progress of trial, on Saturday night, November 12, 1887, at the Grand Opera House in Mt. Pleasant, Henry county, Iowa, I had a conversation with said Browning relating to said above-named case, then on trial, before a jury. I am. informed said Browning was a member of said jury. That in said conversation said Browning said to me that there had been examined several witnesses, and that as. yet there was nothing said against defendant Craig. That witnesses had testified that they had got something-to drink up there at the Brazelton House, but that they had not got it from defendant Craig. That said juryman, W. S. Browning, and myself, conversed for some-moments on the subject of said trial then pending.” This conduct of thе juror is a ground of complaint by the defendant. That such conduct is reprehensible, and should promptly meet with reproof by the court whose orders are violated, admits of no doubt; but- that the *642facts furnish no reasonable grounds of complaint by the defendant wе think very clear. If the remarks had a tendency to commit the juror to any view of the case, it was favorable to the defendant. It is said in argument that “even the look or gestures may have had sufficient weight, unconsciously, to turn the mind either to the right or the left.” In view of the facts as they appear from the affidavit, we regard such an apprehension more fanciful than real.

YI. No specific complaint is made as to the instructions given or refused, and with our examination of the record we think the case was fairly submitted, and of the guilt of the defendant there is little room for doubt. Affirmed.