18 Iowa 43 | Iowa | 1864
Aside from this provision, or other saving of the statute, any prosecution commenced under a statute, which was repealed by the Revision, must have been discontinued, since such repeal would render further proceedings groundless. Whether this section, as quoted above, was intended simply to keep alive the statutes, under which the prosecutions and proceedings had been commenced, so as to enable the courts to visit upon the offenders the penalties of the statutes thus repealed; or whether it was intended to continue in force the mode of the procedure as provided by the Code of 1851, as to all prosecutions commenced under the statutes continued in force as well as to those repealed, may well be doubted. Nor is it necessary to the present inquiry that we should determine. Since, under either Code, the defendant had not the right under the circumstances as a matter of law, without any showing, to a continuance. Code of 1851, §§ 2931, 2941; Revision, §§ 4723, 4724, 4749, 4750.
The defendant was then arraigned, and given time till the next morning to plead. At the time fixed he filed, in writing, his plea of not guilty.
II. After the oral motion for continuance was overruled, and on the morning of the second day of the term, which was May 31st, 1864, the deféndant filed his written motion
The affidavit of defendant set forth, in substance, that when he was arrested at Davenport he understood that it was for the murder of George Lawrence, and that he had not been informed of the offense he was charged with, till the indictment was read to him yesterday; that he was not guilty, and believed he could show it if he had an opportunity to make his defense; that he was not at or near the ■ place the homicide charged was said to have been commit'ted, at the time when it was charged to have been done; but the time was so long, he could not state where he then was, nor by whom he could show it without time to correspond with parties and ascertain the dates where he was at different places; that he had written to his father to come and aid him in his defense, but had received no answer ; that he could prove by a Mrs. Whipple, of Omaha, N. T., that George Lawrence was still living; that there was a strong prejudice against him in Wapello county, but he knew of no one who would unite with him in an affidavit for a change of the venue.
The professional statements severally set forth, at some length, in substance, that defendant had assured them of his innocence, and of facts and circumstances which convinced them thereof, and that a continuance was necessary in order to make the defense, which could not by any efforts have been prepared by that term.
The court thereupon sustained the motion, “ being fully satisfied that the omission by the clerk to enter the name of the said Joshua Bryant in the record of the court, was an evident mistake,” and ordered that the record should show the fact that the said Joshua Bryant was one of said grand 'jury. To all of which the defendant, by his counsel, objected and excepted, and now assigns the same as error.
It was provided by the Code of 1851, and re-enacted and continued by the Revision, that “ entries made, approved and signed at a previous term, can be altered only to-correct an evident mistake.” Code of 1851, § 1580; Revision, § 2667. A fair construction of this provision is, that entries made at a previous term may be altered to correct an evident mistake. The court then had the express power given it to correct such mistake, and the proof made in this case and brought up by bill of exceptions, satisfies us that the court did not improperly exercise that power.
The exception was, doubtless, taken out of abundant caution, and with the hope that something might possibly “ turn up” whereby it would be available. But we are unable to see how the defendant could be prejudiced by swearing the jury twice, or by refusing to duplicate the oath, with variations or otherwise to the witnesses.
But it may not be improper to add, that whatever may be the rule of practice under the Revision,' which requires that the minutes of the evidence given by the witnesses before the grand jury, must be filed with the indictment, &c., we are unanimously of the opinion that under the Code of 1851, and the law of 1858, the witnesses, whose names were indorsed on the indictment, were properly permitted to testify in this case. The State v. Bowers, 17 Iowa, 46.
VIII. Among the names indorsed on the back of the indictment was “ex-Sheriff Upright of Rockford, 111."
There was no error in this action of the court. The name of the witness was substantially indorsed on the indictment. It is true his Christian name was omitted, and his title used instead of it. The object in requiring the name to be indorsed on the indictment, is to notify the defendant of the witnesses who will be called against him. Where such witness is as unmistakably described, as he would be by the use of his Christian or whole name, that object or purpose is fully met, and no prejudice whatever could result to the defendant. Code of 1851, § 2920; Rev., § 4660; The State v. Seder, 8 Iowa, 420.
IX. It is insisted by counsel, in this court, that the verdict is contrary to the evidence, and that for this reason, a new trial should be granted. We have unitedly given to the evidence a careful reading, and a most thorough consideration ; and while to the Chief Justice and the writer of this opinion, the verdict would have been more fully satisfactory, if it had been for murder simpty, yet, under the rules applicable to this ground for a new trial in an appellate court, we are unanimously of the opinion that we would not be justified in granting a new trial for this cause.
X. The counsel in this case for the defendant, after having evinced unswerving and untiring fidelity to the cause of their client in the trial below, and manifested therein unusual ability and acumen, have assigned thirty-one errors in this court. We have herein passed seriatim, upon the points made and discussed in the argument, and have also given an examination to each of the errors as assigned, but find no error therein.
The judgment of the District Court is therefore affirmed.