State v. District Court of Jefferson County

• Decision Date: 29 September 1931
• Docket Number: 41016
• Citation: 238 N.W. 290,213 Iowa 822
• Parties: STATE OF IOWA ex rel. JOHN FLETCHER, Attorney-general, Petitioner, v. DISTRICT COURT OF JEFFERSON COUNTY et al., Respondents
• Court: Iowa Supreme Court

238 N.W. 290

213 Iowa 822

STATE OF IOWA ex rel. JOHN FLETCHER, Attorney-general, Petitioner, v. DISTRICT COURT OF JEFFERSON COUNTY et al., Respondents

No. 41016

Supreme Court of Iowa, Des Moines

September 29, 1931

REHEARING DENIED DECEMBER 17, 1931.

Certiorari to Jefferson District Court.--R. W. SMITH, Judge.

This is an original proceeding by certiorari in this Court to review the action of the respondents in denying to the State a change of the place of trial of county attorneys' informations and indictment charging conspiracy and false pretenses. Writ sustained, orders annulled, causes remanded.

Writ sustained. Orders Annulled. Causes Remanded.

John Fletcher, Attorney-general, Neill Garrett, Assistant Attorney-general, Otto J. Eckey, County Attorney, Ralph H Munro, Special Prosecutor, and John J. Hess, Special Assistant Attorney-general, for petitioners.

Thoma & Thoma, R. C. Leggett, Smith & Smith, X. C. Nady, J. A Huglin, and Jones & White, for respondents.

MORLING J. STEVENS, GRIMM, KINDIG, ALBERT, and DE GRAFF, JJ., concur. FAVILLE, C. J., Mr. Justice Evans and Mr. Justice Wagner, (dissenting).

OPINION

MORLING, J.

On September 18, 1930, some 36 county attorneys' informations against defendants numbering in all 26 were filed in the Jefferson District Court, each in two counts against two to four defendants, charging conspiracy and false pretenses. Later an indictment was returned in another case against three of the same defendants also charging conspiracy and false pretenses. One of the cases went to trial resulting in a verdict for defendants. Thereupon the State asked for a change of place of trial in each of the remaining cases "for the reason that the State cannot receive a fair and impartial trial in Jefferson county, Iowa, owing to excitement and prejudice in said county against the prosecution as appears in the affidavit of Otto J. Eckey, Ralph H. Munro and John J. Hess, prosecuting attorneys for the State attached hereto * * *." The affidavit states:

"That the charge made in the above entitled case is a felony and the defendants therein are residents of Jefferson county, Iowa; that owing to excitement and prejudice in said Jefferson county against the State these affiants verily believe that a fair and impartial trial of the above entitled case cannot be had in said Jefferson county, Iowa; that said case is one of a series of some 30 cases all against persons living in and near Jefferson county, Iowa, and these affiants verily believe that because of the excitement and prejudice and the fact that one of said cases has already been tried in said community and said trial was largely attended by persons living in Jefferson county, and vicinity the State can only procure a fair and impartial trial by having said cause removed to some county in the district where such condition does not exist and these affiants verily believe that a like condition because of the residence of certain of the defendants* * *."

Defendants filed resistance on the ground that the statute providing for a change of venue on application of the State is in violation of Section 9, Article 1, of the Constitution, and on the further ground that "practically all of the defendants, the witnesses and the attorneys engaged in said causes are residents of Jefferson county, Iowa, and the transfer of said causes to some other county for trial would work a hardship * * * 3 * * * a fair and impartial trial can be had by the State in each and all of said causes in Jefferson county, Iowa, and for the reason that there is no prejudice or excitement against the State of Iowa in Jefferson county, Iowa, which would in any manner prevent the State from obtaining a fair and impartial trial of each and all of said cases in said county, all of which is evidenced by the affidavits of residents of said county hereto attached * * *." The affidavit of Ernest Aronson set out in the return in support of the resistance states:

"That I am a resident of Lockridge Township in Jefferson county, Iowa, and I have resided in said Township in said County for more than the 30 years last past. That I am the assessor for my Township and within the past three or four months have talked with a majority of the people living within my Township. That I am well acquainted with the sentiment of the people in my community relative to the so-called cattle cases in which the State of Iowa is plaintiff and the following named persons (naming the 26 defendants) * * * are defendants. That there is no prejudice or excitement against the State of Iowa in the community in which I reside which would in any manner prevent the State from obtaining a fair and impartial trial of each and all of said cases in Jefferson county, Iowa."

The return recites: "Separate affidavits similar to the affidavit of Ernest Aronson as set out above were filed as follows: (Here follows a list of 765 names giving the township of residence and years of residence of each affiant.) The State filed supporting affidavits stating:

"We the undersigned residents of Jefferson county, Iowa, * * * on oath say that owing to excitement and prejudice in Jefferson county, Iowa, against the state and in favor of the numerous defendants in the cases now commonly known as the cattle cases, being cases entitled The State of Iowa v. A. L. Neuhart, and others including some twenty-six different defendants residing in this and adjoining counties; because of the fact that the largely attended trial in the case of State v. John B. Stever, recently tried in this county, and because of the publicity given said trial by public attendance at said trial, and newspaper publication given same, and because of the large number of defendants and their associates and relatives in this county, we verily believe that a fair and impartial trial of the said cases or any of them can not be had in Jefferson county, Iowa, and we believe that justice can more nearly be obtained by change of place of trial to some other county in which such condition does not exist."

Here follow the signatures of the affiants with their occupation and address--some 360 in number. The total number of affiants on both sides, exclusive of the state's attorneys, is therefore 1123. The District Court did not pass on the constitutional question but ruled that the state's showing in the light of the resistance was insufficient to satisfy him that there was any excitement or prejudice against the state that would prevent the state from having a fair and impartial trial in Jefferson county.

The respondents, not waiving their claim of unconstitutionality of the statute which gives to the State the right to petition for change of place of trial, base their resistance to the proceeding here mainly on the contention that the trial court in denying the State's application for change was in the proper exercise of its discretion and that its action is not open to review on certiorari.

Respondents argue:

"The abuse of discretion to justify interference with the exercise of discretionary power implies not merely the error of judgment, but perversity of will, passion, prejudice, partiality or moral delinquency. Citizens Co. v. Heath, 29 Ind.App. 395, 62 N.E. 107; Stewart v. Stewart, 28 Ind.App. 378, 62 N.E. 1023-1025; People v. R. R. Co., 29 N.Y. 418; Sharon v. Sharon, 75 Cal. 1, 16 P. 345; 1 Words and Phrases 49 and cases there cited."

Chapter 221, 40th G. A., extended to the State the right to petition for change of venue. The statute provides (Code, 1927, Section 13813):

"Such petition, when filed by the state, shall set forth the nature of the prosecution, the court where the same is pending, and that the state cannot receive a fair and impartial trial in said county owing to excitement or prejudice in such county against the prosecution, and be verified on information and belief by the affidavit of the county attorney or his assistant."

"13815. The petition need not state the facts upon which the belief of the petitioner or other person verifying the same is founded, but may allege the belief of the particular ground thereof in general terms."

"13816. When the alleged ground in the petition is excitement or prejudice in the county against the petitioner, the court may receive additional testimony by affidavits only, either on the part of the defendant or the state."

"13818. The court, in the exercise of a sound discretion, must, when fully advised, decide the matter of the petition according to the very right of it."

I. By our Constitution, "The powers of the government of Iowa shall be divided into three separate departments--the legislative, the executive, and the judicial * * *" (Article 3, Section 1.) The legislative authority of the state is vested in the General Assembly. The supreme executive power of the state is vested in the Governor, and the judicial power is "vested in a Supreme Court, district courts, and such other courts inferior to the Supreme Court as the General Assembly may * * * establish." Article 5, Section 1. All of the powers of government of the state (except so far as they may be specially reserved by the Constitution or may have been delegated to the Federal Government) are vested in these three departments. The definition of crime and the procedure for its punishment are legislative.

Section 9, Article 1, of the Constitution provides:

"The right of trial by jury shall remain inviolate; * * * but no person shall be deprived of life, liberty, or property, without due process of law."

At common law, "the grand jury are sworn to inquire only for the body of the county." In general, at common law all offenses must be inquired into as well as tried in the county where the fact is committed. 4 Blackstone Commentaries ...