State v. Thomas , 97 Iowa 396 ( 1896 )

Given, J.

In State v. Rivers, 58 Iowa, 102 (12 N. W. Rep. 117), wherein this same kind of a motion was made, this court said: “We are prepared to hold that when a defendant has been arraigned upon an indictment, and it is afterwards lost or abstracted, the court may, upon motion, substitute a copy, and proceed upon the record thus made, the same as upon the original indictment.” In that case, the substituted copy was made from the original by the clerk of the district court, and properly certified. This court said: “There can be no question but that the copy was sufficiently proven to be correct.” See also State v. Shank, 79 Iowa, 47 (44 N. W. Rep. 241). The evidence as to the substitute offered in this case, is, in substance, this: Mr. Woodward, the county attorney, who filed this motion, testified that he came into office in January, 1895, and that he had never seen the original indictment, nor a copy thereof, nor consulted with the attorney who drew it as to its contents; that he got the minutes of the evidence taken by the grand jury, from the clerk, and, after examining them, returned them to the clerk, and thereafter drew the proposed substitute. He says: “As to the statement of facts and all material allegations, I understand it to be the same case as the original indictment.” That it is the same case there can be no doubt, but it is probable that Mr. Woodward intends to be understood as saying that he understands it to be the same charge as in the original indictment. Mr. Dayton, who drew the indictment iñ September, 1898, testifies, in substance, as follows: That he thinks the proposed substitute contains substantially all the allegations that were alleged in the indictment he drew, and that the indorsements are substantially the- same, but cannot say that it is a true copy. He says the substitute “is more, voluminous than the original. There are allegations here that were not in the original, but I am not able to state just what they are, all of them. I think there are some descriptions as to instruments used that were not in the original, so far as describing the handle of the knife, and the caliber of the revolver; I think they were not in the original. I think the original did not speak of the number of blades the knife contained, and I think this does; and my impression is that the original did not contain these words, ‘And of their malice aforethought,’ but I will not be positive.” In State v. Rivers, supra, this court held that, in case the indictment is lost or destroyed, an exact copy may be substituted, but it has never decided whether a substantial copy may be substituted. The evidence introduced in support of this motion fails to show with that certainty that should be required in such a case that this proposed substitute is even a substantial copy of the indictment for which it is asked to be substituted. Entertaining this view, and having no argument from appellees, we do not determine whether a substantial copy may be substituted. We think the motion was properly overruled. — Affirmed.