47 Iowa 489 | Iowa | 1877
Soction 4337 of the Code provides that,a motion to set aside the indictment may be made for a failure to indorse thereon
II. One George Finn was introduced as a witness for the State for the purpose of proving certain admissions made by the defendant. Upon examination of Finn as to the circumstances under which the admissions were made, the court held that they were inadmissible. The defendant on cross-examination then asked the witness this question: “ Did you get any information from the defendant in this case in reference to the revolver? Ans. Yes sir; I got information of who the parties were who were with him.” The defendant moved to strike out this answer as unresponsive. The motion was overruled. Thereupon the State, in re-direct examination, asked the witness the following question: “What information did you get in regard to the parties that were with him?” The defendant objected to this question as seeking to introduce an admission which the court had already held to be inadmissible. The court ovei’ruled the objection on the ground that the defendant had examined him on the same subject.- The following testimony was then introduced: “He told me that Miller and Driscoll were with him; whether he said Hancke or not I could not say; I don’t remember.” “Which Miller do you mean?” “Gus. Miller; at first I did not know which one of the Miller boys, but found out afterward it was Gus. Miller who was with him.” “Were with him when?” This question was objected to and the ob
To some of us it appeared, at first view, that the defendant had drawn out of Finn, when he was his own witness, everything of a material character which Finn had testified to as a witness of the State; that defendant could not object to the testimony thus introduced by himself, and that, by his own action, he had rendered the error of the court, above referred to, error without prejudice. But a more careful examination of the abstract convinces us that this view is not tenable. Finn, when introduced by defendant, simply testified that defendant told him Driscoll was with him. Finn, as a witness for the State, says: “ He told me that Miller and Driscoll were with him.” Miller was an accomplice in the commission of the burglary. He was a witness upon the part of the State, and gave very important testimony tending to fasten the crime upon the defendant. Defendant could not be convicted upon the testimony of this accomplice without coi'roboration. It is impossible to tell how much' consideration, in the way of cor-l’oboratioxx, the jury may have given to the admission of defendant that Miller was with him. Ixxdeed, it is difficult to conceive of corroboxution more satisfactox’y. It is true the evidence, so far as we have it in the abstract, does not show where defendant admitted Miller was with him. But froxn the whole evidence, the jury would very likely regard, and would be justified in regarding, the admission as refen-ing to the place where the burglary was committed.
Beversed.