17 Iowa 39 (Iowa. 1864), State v. Baldy

Citation:17 Iowa 39
Opinion Judge:COLE, J.
Party Name:THE STATE OF IOWA v. BALDY
Attorney:J. D. Templin and W. H. Stivers for the appellant. C. C. Nourse, Attorney-General, for the State.
Court:Supreme Court of Iowa
 
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17 Iowa 39 (Iowa. 1864)

THE STATE OF IOWA

v.

BALDY

Supreme Court of Iowa, Des Moines

June, 1864

Appeal from Tama District Court.

WEDNESDAY, JUNE 29.

THIS is a prosecution for adultery. The defendant was found guilty by a jury, and after judgment and sentence by the District Court, having secured of record the matters which he assigns as error, prosecutes this appeal. The further necessary facts are stated in the opinion.

Reversed.

J. D. Templin and W. H. Stivers for the appellant.

C. C. Nourse, Attorney-General, for the State.

OPINION

COLE, J.

The indictment does not contain the name of the offense, but does contain a statement of the facts constituting the offense of adultery, in ordinary and concise language, and further avers that it was found on the complaint of Asenath Baldy, the lawful wife of the defendant.

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The defendant demurred to the indictment, because it did not name the offense, that it was uncertain as to the crime charged, did not show that the wife was alive when the offense was committed, and did not, also, accuse the other party to the crime. This demurrer was overruled, and the decision of the court thereon is assigned as the first error. While as a matter of form it may be the better practice to name the offense in the indictment, a failure to do so will not render it vulnerable to a demurrer or other objection. A fair construction of the Revision, §§ 4650, 4651, 4659, subdivision 5, § 4660, subdivision 4, and § 5111 shows beyond controversy that such objection certainly cannot be made available on appeal. (The State v. Hessenkamp, ante, 25.) All the other grounds of demurrer have no foundation in fact, in this case, except the last, and that is entirely immaterial.

II. The defendant applied for a change of venue, on the ground of excitement and prejudice against him in that county, and supported his application by his own affidavit and that of three other persons. It was resisted by the counter affidavits of eighteen persons, and was overruled by the court, and the same is now assigned as error.

By express statute the granting or refusing an application for change of venue, is a matter of sound legal discretion with the District Court, and unless that discretion is exercised clearly in violation of the very right of the matter, this court will not disturb the...

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