
    The State v. Story.
    Criminal Law: witness’ name not on indictment : effect. G. B. H. was a witness before the grand jury which found the indictment in this case, and proper minutes of his testimony were made, and he signed his true name to the minutes, but his name was endorsed upon the indictment as J. B. H. Held that if the variance might be urged as a ground for setting aside the indictment, it was no ground for excluding the evidence of the witness on the trial. ( Compare secs. 4893 and 4481 of the Code, and cases cited in opinion.)
    
      Appeal from Polk District Court. — Hon. Marcus Kavanagi-i, Jr., Judge.
    Filed, December 20, 1888.
    Dependant was indicted, tried and convicted upon a charge of keeping a liquor nuisance, and he appeals.
    
      W. S. Sickmon, for appellant.
    
      A. J. Baker, Attorney General, for the State.
   Rothrock, J.

— I. The defendant was indicted by the name of M. Story. When he was arraigned he •stated that his true name was Joseph Story, and, under the statute, the cause was afterwards prosecuted against him in his true name. He was jointly indicted with one J. Story. A verdict of guilty was found against both of the parties charged. A motion for a new trial was sustained as to J. Story. No further consideration need therefore be given as to the trial of the case against him. One Gr. B. Hamilton was called as a witness in behalf of the state. The defendant objected to the witness on the ground that his name was not indorsed on the indictment; The objection was overruled. The' facts appear to be that the witness was examined before the grand jury, and proper minutes made of his testimony, and he signed his true name to the minutes. But his name was indorsed on the indictment as J. B. Hamilton. Section 4293 of the Code, requires the name of the witness to be indorsed on the indictment. But by section 4421, the attorney for the state may introduce any witness who was examined before the grand jury, and the minutes of whose testi•mony were taken by clerk of the grand jury, and presented with the indictment. An objection that the name of the witness is not indorsed on the indictment may. be the ground of a motion to set aside the indictment, but it is no reason for excluding the evidence. State v. Flynn, 42 Iowa, 164; State v. Fowler, 52 Iowa, 103. The ruling of the court was correct.

II. It is claimed that the evidence was insufficient to authorize a verdict against the appellant. We think otherwise. And we discover no error in the instructions to the jury; nor in refusing to give those requested by the defendant.

Affirmed.  