State v. Dean

• Decision Date: 09 June 1910
• Citation: 148 Iowa 566,126 N.W. 692
• Parties: STATE v. DEAN.
• Court: Iowa Supreme Court

148 Iowa 566

126 N.W. 692

STATE

v.DEAN.

Supreme Court of Iowa.

June 9, 1910.

Appeal from District Court, Marion County; J. H. Applegate, Judge.

Defendant was convicted under an indictment charging him and one Van Gorkum jointly with forcible defilement committed upon one Josephine Muilenburg, and from this conviction he appeals. Affirmed.Hays & Amos, for appellant.

H. W. Byers, Atty. Gen., and Charles W. Lyon, Asst. Atty. Gen., for the State.

McCLAIN, J.

1. The trial court overruled a motion for change in the place of trial to another county predicated upon a showing that at the December term, 1908, of the district court of Marion county, this defendant and Van Gorkum were indicted for the crime of rape committed upon this prosecutrix, and at the February term following Van Gorkum was tried and convicted of assault and battery; that the case as against this defendant was continued until the April term following; that in the meantime defendant was indicted for the offense of public lewdness, this indictment being also continued to the April term; that at the April term the present indictment was returned against defendant and Van Gorkum, charging forcible defilement, and the indictment for rape was then dismissed; that this defendant was at said April term tried under this indictment for forcible defilement, and a verdict of guilty was returned against him which was afterwards set aside by the trial court, whereupon his case was continued to the September term following, at which he was tried and convicted, the trial commencing on the 19th of October; that, during and immediately following the trial of Van Gorkum in February which resulted in his conviction for assault, the two newspapers published in the county seat called attention to the sensational nature of the charges against Van Gorkum and this defendant, and referred to the conviction of Van Gorkum for assault instead of rape as an outrageous perversion of justice, and they made sarcastic references to the insignificance of the punishment which could be imposed for the wrong done, the revolting nature of the acts which were testified to by Van Gorkum, and this defendant was a witness for him, being freely commented upon; that the same subject-matter was again referred to by these newspapers after the conviction of this defendant in May, and the setting aside of the conviction by the trial court on a motion for new trial based upon alleged errors of law in the exclusion of certain testimony offered for the defendant; that the same newspapers had in the meantime commented upon two crimes against women committed in Ottumwa, drawing inferences therefrom to the discredit of criminal procedure in our courts; and that in general these publications had indicated an excited state of feeling on the part of the public in Marion county with reference to the failure to adequately punish Van Gorkum and this defendant for the criminal transaction with which they were charged to have been connected. In support of defendant's motion which was filed September 28th, an affidavit was presented, signed by nine residents of the county, stating that in their judgment there was such a state of excitement or prejudice caused by the publication of damaging and villifying articles and editorials, together with public discussion, that defendant could not have a fair and impartial trial in said county. In a resistance to this motion, the county attorney stated facts tending to show that the publications referred to could not have reached any considerable portion of the electors of the county; that the affiants, whose statements were relied upon for the defendant, lived in the town of Pella and the immediate vicinity thereof, and did not give a fair expression of the feeling existing in the minds of the people of the body of the county; and that any prejudice which may have existed against the defendant among the electors of the county at large by reason of the publications complained of had died out by virtue of the lapse of time since they had been made. In support of this resistance, affidavits were presented, made by six residents of different townships in the county, to the effect that in their belief there was not such excitement and prejudice in the county as would prevent the procuring of a jury which would be entirely fair and impartial toward defendant.

Now, we may concede that the newspaper comments were unfair toward the jury which returned a verdict of assault only against Van Gorkum, and to the court which set aside the conviction of this defendant for errors of law committed on his trial, and we may concede further that the criticism on the courts in general with reference to the procedure in criminal cases was unwarranted and unfortunate in its tendency to bring the proceedings of our courts in general into disrepute. But we find nothing in the articles tending to incite a disregard of law on the part of the community, nor likely to cause a judge or jury to depart from sworn duty in the administration of law in the case of this defendant. The showing in this case is quite similar to that commented upon in the cases of State v. Icenbice, 126 Iowa, 16, 101 N. W. 273, and State v. Brown, 130 Iowa, 57, 106 N. W. 379, in each of which this court refused to interfere with the discretion exercised by the trial court in overruling a motion for a change or place of trial. The general rule recognized in these cases and in the more recent case of State v. Hoffman, 134 Iowa, 587, 112 N. W. 103, that, where there is a substantial conflict as to the existence of passion and prejudice likely to affect the result of the trial, the discretion of the lower court in overruling a motion for a change will not be interfered with on appeal, is too well established to require the citation of further authorities. It is true that in State v. Crafton, 89 Iowa, 109, 56 N. W. 257, there was a reversal on the ground that, under the showing made in that case as to sensational statements against the defendant in the newspapers immediately after the alleged commission of the crime, a change of venue should have been granted. But in the case before us the trial of Van Gorkum as to which the most serious complaints were made was had in February, the first trial of this defendant was held in May, and the motion for change was not made until just preceding the trial in October at which defendant was convicted. If there had been an application for change of place of trial or for continuance in May on account of the alleged prejudice in the county, the showing would have been more persuasive and entitled to more serious consideration; but it was certainly for the trial court to say, under the circumstances as shown to him in October, whether any prejudice that may have existed against defendant such as would probably prevent his having a fair trial had not so far subsided as that an unbiased jury could be secured, and there is not the slightest showing that the jury which did finally convict him was influenced in any way by passion and prejudice. Under the circumstances of the case, we are well satisfied that the ruling of the trial court should not be interfered with.

2. The evidence for the prosecution tended to show that on the evening of October 8, 1908, in the town of Pella, this defendant and Van Gorkum, who was jointly indicted with him, took the prosecuting witness against her will into a buggy, and, preventing her from escaping, drove a mile or two into the country, where they took her into a field, and, by means of mutual assistance of each other in restraining her voluntary actions, they each had intercourse with her; that, returning with her in the buggy, they took her to the lodging room of one Visser and kept her there in restraint all night, where each of them and also Visser himself had intercourse with her; and that she did not escape from Visser's room until after noon of the next day. At the time of the commission of these acts, the prosecuting witness was a girl under 17 years of age, but over the age of consent.

At the close of the evidence for the prosecution, the defendant moved the court to require the election on the part of the state as to whether it would rely for conviction on the evidence relating to the intercourse had in the country or on the intercourse had in Visser's room, and defendant now complains of the action of the court in overruling this motion. If the prosecution had been for rape, the duty of the state to...