State v. McKinney

42 Iowa 205 | Iowa | 1875

Day, J.

The indictment charges the defendant with willfully and falsely swearing in an action between defendant and one IT. O. Brown, that defendant in the year 1872 had no partner'in the business of farming and tilling the land of II. O. Brown, which defendant was, during said year, employed in cultivating. It was proved that upon said trial he swore as charged in the indictment, and that afterward in a proceeding before the grand jury he swore that one A. Lineback was his partner in said farming operations; there was also other testimony tending to prove that Lineback was his partner in the farming operation.

Testimony was introduced tending to show that defendant stated before the gránd jury, that he would not have sworn as he did before the trial jury, if he had not been advised by Jamison, that he did not know really what constituted a partnership and if he had not been advised by Jamison he would have sworn that he did not know whether he and Line-back were partners or not.

Jamison was introduced as a witness for defendant, and stated that he was one of the attorneys in the case of McKinney v. Brown, and was present during the trial. The defendant asked this witness the following question: “Do you recollect having a conversation and giving McKinney advice as a counsellor in regard to the wheat and partnership matter? ” The state .objected to this testimony and the objection was sustained.

Under the circumstances described it is evident that a very material question was whether the testimony of the defend; ant was willfully false. The matter inquired about, the existence of a partnership is a mixed question of law and fact. If it could be shown that defendant was advised by his counsel, that the relation existing between defendant and Line-back was not a partnership, such testimony would be entitled to consideration, in determining whether or not the defendant made oath to what he knew or believed to be untrue. We think the defendant was entitled to an answer to the question .propounded, and that he has, or may have, sustained prejudice by its rejection. The record discloses no other error. The instructions asked by defendant, and the refusal of which is made a ground'of complaint, are, so far as they aré proper and pertinent, fully contained in the instructions given.

For the error above considered the judgment is

Reversed.