1 I. Between the time of the drawing of the grand jury which found this, indictment and the time the indictment was returned, the law touching the selection of grand jurors was changed, and said new .act took effect July 1, 1895. The indictment was found in October, 1895. A challenge to the panel of the grand jury was. interposed on the ground that said panel was not appointed, drawn, and summoned as prescribed by law. The challenge was not allowed. The ruling was correct. State v. Graff, 97 Iowa, 568.
2 II. Defendant made a motion for a continuance on the ground of the absence of a witness named Dahl, on account of sickness. The state having, admitted that the witness, if present, would testify as. stated in the affidavit, the motion was overruled, and the defendant excepted. Upon the trial the defendant read said ¡affidavit to. the jury. He now claims that, under the constitution, he'was entitled to the personal attendance of the witness, or to a continuance. Our statute provides that “the rules .of evidence prescribed in the civil part of the Code, Shall ¡apply to criminal proceedings as far as applicable and as they are not inconsistent with the provisions of this chapter.” Code 1873, section 4556. Under Code 1873, section 2751, if the application be sufficient, the cause must be com tinued unless the adverse party will admit that the witness, if present, would testify to the facts therein stated, in which event the cause ‘shall not be continued, but the' *56party may read as evidence of such, witness the facts held by the court to be properly stated. True it is that the defendant has, by virtue of the constitution, the right to have compulsory process for his witnesses. That right he had in this case. On account of the sickness of the witness, such process did not avail to bring the witness into court; but the defendant was not thereby deprived of his constitutional right. In State v. Kennedy, 20 Iowa, 372, it was held that a defendant had no absolute right, under this provision of the constitution, to insist upon the personal attendance of a witness who was a convict in the state penitent'iary. In principle, that case is controlling in the case at bar. There was no error in the court’s ruling.
3 III. The serious question in this, case is as to the guilt of the defendant. The act of adultery upon which conviction was had' is said to have occurred in the. cemetery in the city of Algona, Iowa, on April 22, 1895. One witness testifies to having seen the defendant and Mrs. Shadle go into the cemetery on that day; that he did not see them upon the ground. This witness says they hugged and kissed for a half 'hour. Another witness, who was with the one 'before referred to, saw them in the cemetery; says they were standing up; that they moved around ¡some. Still another witness saw them enter the cemetery. The evidence shows without conflict that, after entering the; cemetery, they went towards the grave of Mrs. Shadle’s; father. All this occurred in daytime. But one witness; ¡testifies to .any improper conduct at the cemetery, and |he,phly,!ttbat they were hugging and kissing. N o other ■[witness ¡saw ittkai;, though at least one other person was watching Mrs. 'Shadle and the defendant while they were in the cemetery. The defendant .and Mrs. Shadle both deny the kissing Jand hugging in the cemetery. They positively deny having, at that or any other time; *57baid any connection with each other. Evidence was ^introduced showing- the defendant’s good character. Nothing improper is shown to have occurred at the •cemetery between these parties except the hugging and kissing, and under the evidence it is not at all certain that they were guilty of those acts in that place. Giving the utmost force and effect to the unsupported testimony of one witness, and these acts in the cemetery ■only tended to show mutual affection, which, though manifestly improper, was not criminal. From a close examination of this record, we are forced to the conclusion that this verdict is not supported by the evidence. It cannot be truthfully said that it justified the jury in finding the defendant guilty of the crime charged, ■beyond a reasonable doubt. For this reason the judgment below is reversed.
