State v. Beck

• Decision Date: 20 December 1887
• Citation: 73 Iowa 616,35 N.W. 684
• Parties: STATE v. BECK.
• Court: Iowa Supreme Court

73 Iowa 616

35 N.W. 684

STATE

v.BECK.

Supreme Court of Iowa.

December 20, 1887.

Appeal from district court, Wright county.

The defendant, Phinley Beck, was convicted of the crime of assault with intent to rob, and sentenced to a term of imprisonment in the penitentiary.D. C. Filkins and J. F. Martin, for defendant.

A. J. Baker, Atty. Gen., for the State.

REED, J.

1. The defendant filed a petition for a change of venue, on the ground of the alleged prejudice of the judge of the district court, and of excitement and prejudice of the inhabitants of the county against him. But the petition was overruled. The application was supported by the affidavits of a large number of inhabitants of the county, and the district attorney filed the affidavits of a number of citizens in resistance. The affidavits in support of the application tended to show the existence of some degree of excitement with reference to the case among the people of the county, while those in resistance tended to prove that no prejudice existed which would prevent the defendant from having a fair trial in the county. The application was addressed to the discretion of the court, (State v. Ostrander, 18 Iowa, 435;State v. Ross, 21 Iowa, 467;State v. Perigo, 70 Iowa, 657, 28 N. W. Rep. 452,) and we cannot say that the district court abused the discretion with which it is clothed. Defendant's witnesses testified that in their opinion there did exist such prejudice and excitement in the county that he could not have a fair trial, while those for the state testified to a contrary opinion. No fact is proven from which we can conclude that the opinion of the witnesses for the defendant is entitled to any greater weight than that of those for the state. In such cases we will not disturb the finding of the trial court.

2. Defendant was jointly indicted with one Daniel Campbell; but the parties were tried separately. Campbell was tried at a former term, and convicted; but, on appeal to this court, we held that the evidence did not support the verdict, and when the cause was remanded, it was dismissed as to Campbellon the motion of the district attorney. It is now insisted that the evidence which tends to connect the defendant with the commission of the offense is no stronger than was that against Campbell. It is true that the witness Myers (the person on whom the assault is alleged to have been committed) was no more certain on this trial as to the identity of the persons who committed the crime than he was on the trial of Campbell; and if the verdict rested alone on his testimony, it probably could not be sustained. But while he did not undertake to identify with certainty the defendant as one of the assailants, his evidence proved the commission of the...