dissenting. — I gather, from reading the opinion, that it announces the following propositions:
1. The indictment found against petitioner stands for nothing; it does not make out even a prima-facie ease against the petitioner.
2. The burden is upon the defendant sheriff to show that he rightfully detains the plaintiff in his custody, and he must show not only that he holds him upon a proper warrant, but *294also that it was founded upon sufficient testimony. In other words, he cannot justify by showing that he holds petitioner under a proper warrant, but must affirmatively show that petitioner was properly indicated upon sufficient testimony, and that this testimony established the crime beyond all reasonable doubt, or created a great presumption of guilt. Whether or not the sheriff could, under the majority opinion, introduce additional testimony to that found in the minutes taken of the testimony before the grand jury is not clear to me, from reading the opinion. My impression gained from it is that no other testimony may be considered save that appearing in the minutes of the testimony; for it is said it is this, and this only, upon which the indictment was found. I must respectfully dissent from these conclusions. In the first place, the overwhelming weight of authority in this country is to the effect that the indictment makes out a prima-facie case, and that the burden is upon the petitioner, in a habeas corpus case, to overcome the presumption and show that he is entitled to bail. See Ex parte Fraley, (Okla.) 109 Pac. 295; In re Thomas, (Okla.) 93 Pac. 980; State v. Jenkins, (La.) 50 So. 321; Hight v. United States, Morris (Iowa), *407; Ex parte Alexander, 59 Mo. 598; In re Groans, (Mo.) 12 S. W. 635 (17 Am. St. 571), and note to 81 Am. Dec. 87, 70 Am. St. 742, and 39 L. R. A. (N. S.) 752. But one case seems to hold to the contrary, and that is Ex parte Newman, (Tex.) 41 S. W. 628. This rule prevails, -no matter what the view of the eourt as to the conclusive or inconclusive character of the indictment. The reason for the conclusion of the majority seems to be:
1. The state has the better knowledge as to what the testimony is against the petition than the petitioner; and the case is said to be like unto one where a party is charged with doing an act without a license. I cannot believe that anyone has better knowledge as to the facts of a case than the man who is charged with the offense. He is generally the only man in the world who knows all the facts and has the best knowledge as to who the witnesses are, either for or against him; *295and he also absolutely knows whether their testimony is true or false. As the reason for making an exception to the rule fails, the exception must necessarily do so.
2. It is insisted that, at every stage of the proceedings, a defendant is presumed to be innocent, and in every action involving an investigation into a charge of crime, the burden is upon him who affirms, to establish the crime. It is sufficient to say that this court has held, according to the almost universal rule, that this presumption obtains only when the ease is on final trial. In all other proceedings, an indictment is at least prima-facie evidence of the commission of the crime as charged. The cases, or many of them, are cited in the Hight case, Morris (Iowa) #407. Whatever the change in our Constitutional or statute law, there has been no change which, in my opinion, affects this rule. I affirm that, in every habeas corpus ease, the burden is on the petitioner to show that he is entitled to his discharge. If this were not true a warrant would be no protection to an officer; for he would have to justify the correctness of the trial court’s conclusion in the first instance that the man indicted for murder was not entitled to bail. This is not a motion by petitioner to be admitted to bail, but a habeas corpus ease, where petitioner alleges and must allege that he is wrongfully restrained of his liberty by the defendant, and, under the majority opinion, if defendant does not justify by showing something aside from the indictment, order of the court, and the warrant under which he holds the prisoner, then the petitioner shall be discharged. I think that, under every known rule applicable to habeas corpus cases, the burden is upon the petitioner to show that defendant was unlawfully restraining him of his liberty, and not upon the defendant to do more than to show that he holds him on a lawful commitment issued without right to bail. Starting with the presumption that the petitioner is presumed to be innocent of the entire charge, the majority then proceed to treat the ease upon testimony offered by the petitioner, which consisted of nothing more than the fragmentary min*296utes of the testimony before the grand jury, attached to the indictment. It might be observed in this connection that the petitioner believed he had the burden; for he assumed the burden and introduced whatever testimony there is in the case, save the statement or notice of the county attorney as to additional testimony he proposed to offer on the trial. It should also be observed that the petitioner did not call any witnesses; did not go on the stand himself; did not ask to cross-examine, the witnesses who were before the grand jury; and offered nothing save testimony in support of the proposition that he was guilty of the crime of homicide. I understand the majority to affirm that in no event can anything be considered in such a proceeding as this save the testimony upon which the grand jury acted, and as this is preserved in the minutes, this is the only testimony which may be considered. I respectfully dissent from this conclusion, because, whatever may be the other rules involved, this proposition is fraught with the very gravest danger.
I assert that all the petitioner did in this case was to introduce testimony tending to show that he was guilty of a homicide. The majority seem to think, however, that, as these minutes constituted all of the State’s case before the grand jury, its weakness may be considered; and, having asserted that the indictment raises no presumption of any kind, they proceed to say that these minutes of the testimony attached to the indictment, fragmentary though they be, did not justify the trial court in denying the petitioner a right to bail. The error in this position, as I view it, is that, no matter what the presumption arising from the indictment, the minutes of the testimony taken before the grand jury should not be treated as if they were depositions and contained the whole of what each witness testified to before the grand jury. No one contends that théy embody all the testimony. They are necessarily fragmentary in character, and have never been regarded in this state as anything more than memoranda signed by the witnesses. Neither the witnesses nor the State are in any *297way concluded thereby, and to hold the State strictly thereto in any proceeding is to do it a grave injustice. The matter is one easily reached. The petitioner may call the witnesses whose testimony is relied upon and cross-examine them on their testimony before the grand jury and, in addition, may introduce any testimony which he sees fit to offer. That this is the ordinary course adopted is shown by many authorities. See In re Losasso, 24 Pac. 1080 (10 L. R. A. 847); and note to 39 L. R. A. (N. S.) 772-775.
This rule seems to me to be the sensible and logical one, and I dissent from the view that nothing may be considered on such a hearing as this but the testimony attached to the indictment; that the petitioner may rely upon the weakness of the case as shown by these minutes as if they contained all the testimony; and that the petitioner is not compelled to introduce any testimony at all. I affirm that it is a wrong to the State to treat these fragmentary minutes of the testimony taken before the grand jury as the entire testimony in the ease, or to treat them as depositions binding upon the State, or to treat them as all the testimony adduced before the grand jury and to make an order admitting to bail without any showing that there was no other material testimony than that disclosed in the minutes. I need only cite in this connection some of our eases holding that these notes are not testimony; are not presumed to be the entire testimony; and the inconclusive character thereof. See State v. Ostrander, 18 Iowa 435; State v. Hayden, 45 Iowa 11; State v. Harlan, 98 Iowa 458; State v. Boomer, 103 Iowa 106; State v. Mulhern, 130 Iowa 46; State v. Harris, 122 Iowa 78. It is so well settled that these notes are not supposed to contain the testimony in detail that no other authorities need be cited to show that they should not be regarded as all the testimony in the case, or as depositions. The majority view them as being all the testimony and, in considering the effect thereof, scrutinize and criticize them as if they were depositions.
As the State is not bound by these minutes, and the *298indictment may rest upon testimony -which was not embodied in the minutes, and as there is no showing whatever that we have all the testimony as if it were by deposition before us, I think the petitioner has failed to show that he is illegally restrained of his liberty. Upon such a hearing as this, if the indictment raises no presumption, how can it be said that there is any presumption that we have the entire testimony on which it was found? Moreover, it was entirely permissible for the State, upon this hearing, to claim that not all the testimony which the witnesses would give was set out in the minutes; and if the petitioner may rely upon the minutes, why may not the State, through its own officer, the county attorney, by a statement in his official capacity, in open court and in resistance tu the petitioner’s showing, show that certain witnesses already before the grand jury would testify to other facts, setting them out ? This statement is the equivalent of an oath; and if petitioner may rely upon ex parte statements as minutes before a grand jury, why may not the State show by affidavit that other testimony is at its command which supports the indictment ? Much is made in the opinion of the fact that this court, -on the showing made, would not convict the petitioner and find that he should be punished by hanging. This, to my mind, misses the mark. It is for a jury to say, in such eases, what the punishment shall be, and it is not important for us to speculate as to whether it would impose the death penalty, or whether we would do so on the same showing.
In all jurisdictions save one, so far as I have been able to ascertain, no matter what the rule on the propositions of law I have been discussing, great deference is paid by appellate courts to the decision of the lower court. See Jernagin v. State, (Ga.) 45 S. E. 411; Lester v. State, 33 Ga, 192; Ex parte Richardson, (Ala.) 11 So. 316; State v. Zummo, (La.) 39 So. 442; Ex parte McAnally, 53 Ala. 495. The reason for this is that not only is the testimony to be considered, but also the inferences to be derived therefrom; and, where reasonable *299minds differ as to tbe inferences, tbe district court, being on the ground, near the scene and in the midst of the circumstances attending the transaction, is better able than we to draw the proper inferences from the testimony adduced, particularly where that testimony is fragmentary and does not purport to be all on which the indictment was founded. Ex parte Sloane, (Ala.) 11 So. 14.
Another thing which merits attention in this ease is the attempt to distinguish the rule announced in Hight’s case, Morris (Iowa), *407, supra. As pointed out, the fundamental law at that time, being the Ordinance of 1787, provided that ‘ ‘ all persons shall be bailable unless for capital offenses, where the proof shall be evident or the presumption great”. And the statutory law at that time provided that members of the grand jury might be required by the court to testify as to the evidence given by every witness before the grand jury. See Blue Book of 1843. So that it was entirely competent for any defendant to ascertain just what the testimony was against him before the grand jury. The proceedings of the grand jury were not, therefore, secret, and it was competent for., defendant to call grand jurors and have them disclose all-the testimony taken. This same provision is found in substance in our present Code, and it would seem that, if one wishes to know the entire testimony on which the grand jury acted, he should call the members of that body, rather than rely upon fragmentary statements taken down by one unskilled in such matters. But however this may be, no reason appears for changing the fundamental rule announced in the Eight case, that, in such proceedings as this, the presumption of innocence does not come to defendant’s aid. This is affirmed in many cases and, to my mind, is eminently sound. Ex parte Jones, 55 Ind. 176; State v. Brewster, 35 La. Ann. 605; State v. Crocker, (Wyo.) 40 Pac. 681; Rigdon v. State, (Fla.) 26 So. 711; Ex parte White, 9 Ark. 222; Ex parte Kendall, 100 Ind. 599; Robinson v. Dickerson, (Ala.) 18 So. 729; Lynch v. People, 38 Ill. 494; Ex parte Smith, (Okla.) 99 Pac. 893; State *300v. Herndon, (N. C.) 12 S. E. 268; Ex parte Vaughan, 44 Ala, 417; Brown v. State, (Ind.) 46 N. E. 34; Ex parte Fraley, (Okla.) 109 Pac. 295; People v. Tinder and Smith, 19 Cal. 539.
I do not for a moment contend that the indictment is conclusive, but it does raise a presumption that the defendant therein was guilty as charged, and the burden is on him to overcome this presumption. This, petitioner in this case has not done, or attempted to do. He has not introduced one item of testimony in his own behalf. My examination of the cases confirms me in the belief that the Texas court is the only one which gives any support to the petitioner’s contentions, and it has held both ways on the proposition. Finding nothing whatever introduced by petitioner which in any way overcomes the presumption arising from the indictment, I am clearly of opinion that the action of the district court should not be set aside.
All that petitioner offered was in support of the indictment ; and, as the minutes of the testimony are not conclusive upon the State, mere lack of testimony as shown in the minutes should not overcome the presumption that there was sufficient testimony to justify the finding of the indictment. The petitioner should have called the grand jurors, called and cross-examined the witnesses upon whose testimony the indictment was found, introduced his own testimony or that of his witnesses, and thus overcome the presumption raised by the indictment. The proper procedure in such cases is pointed put in Lynch v. People, 38 Ill. 494 Lumm v. State, 3 Ind., 293; Ex parte Wolff, 57 Cal. 94; Ex parte Hock, 68 Ind. 206; People v. Van Horne, 8 Barb. 158; People v. Shattuck, 6 Abb. N. C. (N. Y.) 33; Ex parte Kendall, 100 Ind. 599.
Much more might be said against the rules announced in the opinion, but time will not permit. The real propositions involved are few, and yet so much is said in the opinion by way of argument and illustration that it has been difficult for me to really ascertain what governing principles are estab*301lished. This is doubtless due to the writer’s limitations and somewhat to lack of time to- thoroughly digest the matter. I am firmly of opinion, however, that an application of the proper rules demands that the order of the district court should be affirmed.
I am authorized to say that Preston, J., concurs in this conclusion.
Evans, C. J.I think that the evidence disclosed by the minutes attached to the indictment was sufficient to justify the action of the trial judge in refusing bail. The majority opinion properly refrains from a discussion of the evidence because of the possible prejudice of such a discussion to the trial to be had, and I refrain from such discussion for the same reason.