State v. Turner
114 Iowa 426
Iowa
1901
Check Treatment
Given, C. J.

1 I. This case is submitted upon an agreed statement, in substance as follows: Defendants were charged with the crime of breaking. and entering a store building, before the judge of the superior court of the city of Keokuk, sitting as an examining magistrate. It was agreed between the parties that the minutes of the testimony should be taken in shorthand by the -official reporter of that court, and transcribed into longhand. For some reason that does not appear, the testimony was taken, transcribed, and certified to, without objection, by one J. A. West. The defendant Turner was released, and the defendant IVIacey was held to the grand jury. A transcript of the proceeding, duly certified, and a transcript of the evidence, certified to be true and correct by Hr. West, were duly filed with the clerk of the district court, and referred to the .grand jury. The grand jury, upon said transcript of the evidence and of witnesses examined before it, returned the indictment- against the defendants, and therewith said trans*428cript of the evidence, but no minute thereof made by the clerk of the grand jury. On the trial in the district court, the state was permitted, over defendants’ objection, to examine the witnesses who had been examined before the magistrate ; no notice having been given that they would be examined. Defendants contend that, as the minutes of the evidence before the magistrate were not taken by the official reporter, as agreed, and as the transcript made by Mr. West was not certified by the magistrate, the defendants were in-dieted upon insufficient and illegal evidence, and that the grand jury had no lawful right to find an indictment based in whole or in part upon said transcript of the evidence before the examining magistrate. They also contend that, for these reasons, and the further reason that the transcript of said evidence, and not a minute thereof, was returned by the grand jury with the indictment, the court erred in permitting the witnesses examined before the magistrate to testify on the trial. Section 5227 of the Code authorizes the magistrate, by agreement of parties, to order the examination taken in shorthand and certified, substantially as provided for taking depositions by a stenographer. Section 4702, Code, providing for taking depositions in shorthand, only requires the certificate of the person taking them, and this testimony was so certified. We held in State v. Kepper, 65 Iowa, 745, and State v. Cook, 92 Iowa, 483, that although the minutes were not certified as provided in section 5228 of the Code, if the grand jury acted thereon, and returned a proper memorandum thereof to. the coui’t with the indictment, defendant could not object to the examination of the witnesses named therein whose names were indorsed on the indictment.

2 There is no merit in the complaint that the examination was taken and certified by Mr. West instead of the official reporter, as no objection was made to Mr. West, and as upon agreement to take the examination in shorthand the magistrate may order whom he chooses to take it.

*4293 Defendants were not prejudiced by tbe fact that tbe transcript of the evidence, instead of a minute thereof, wa3 returned with tbe indictment, as tbe transcript informed them more fully of tbe evidence against them than would tbe minute thereof, and as fully as to names of the witnesses to be examined. It is' not questioned but that tbe transcript of tbe evidence upon which tbe grand jury acted, and which was returned with tbe indictment, was tbe identical transcript of tbe examination before tbe magistrate. There was no error in the grand jury acting upon said evidence, nor in tbe court permitting the state to examine tbe witnesses named in said transcript; their names being indorsed on tbe indictment.

4 II. Defendants insist that tbe trial jury was not selected as provided by law, for that tbe deputy recorder, in stead of the recorder, as required by section 342 of tbe Code, participated in drawing tbe.jury. Section 496 of tbe Code provides: '“The deputy in tbe absence or disability of his principal may perform all tbe duties of tbe principal pertaining to bis office.” Lee county has two county seats, — one at the city of Dt. Madison, where the county recorder was in personal charge of tbe recorder’s office, and one at tbe city of Keokuk, where tbe deputy recorder was in charge. This jury was drawn at Keokuk, and, tbe recorder being then absent from'that city, in attendance upon tbe office at Dt. Madison, tbe deputy participated in drawing tbe jury. This was such absence as is contemplated in said section 496. There was no error in tbe manner of tbe drawing.

If is said that the sentence is excessive, but, as we have not the evidence before us, we cannot' determine as to this contention. We do not find any error in tbe record prejudicial to tbe appellants, and tbe judgment is therefore aeeirmed.