State v. Fishel

• Decision Date: 15 December 1908
• Citation: State v. Fishel, 140 Iowa 460, 118 N.W. 763 (Iowa 1908)
• Parties: THE STATE OF IOWA, Appellee, v. NORMAN FISHEL, Appellant
• Court: Iowa Supreme Court

118 N.W. 763

140 Iowa 460

THE STATE OF IOWA, Appellee, v. NORMAN FISHEL, Appellant

Supreme Court of Iowa, Des Moines

December 15, 1908

Appeal from Page District Court.--HON. N.W. MACY, Judge.

THE defendant was convicted upon a charge of attempted rape, and appeals.

Affirmed.

Parslow & Peters and H. H. Scott, for appellant.

H. W Byers, Attorney General, and C. W. Lyon, Assistant Attorney General, for the State.

OPINION

WEAVER, J.

Counsel for appellant confine their argument for a reversal of the judgment below to two propositions.

I.It is claimed there was a failure of proof upon the allegation that the offense was committed in Page County, Iowa.According to the story of the prosecuting witness, a girl of eighteen years, she entered a buggy driven by appellant, who undertook to carry her from Clarinda to her home in Braddyville in said county, taking a route in a southerly direction through Shambaugh to Morseman, thence westerly in the direction of Braddyville.She states that before they reached Shambaugh the defendant began his assault upon her person, and at repeated intervals until after they reached Morseman and a short distance beyond he made numerous unsuccessful attempts to have intercourse with her by force and against her will.At a short distance beyond Morseman she left appellant's buggy and sought the protection of another person, who took her to her home, where she at once related the story of her alleged wrongs to her parents.The record affirmatively shows that Braddyville is in Page County.Clarinda and Shambaugh are incorporated municipalities, the location of which in Page County is a matter of judicial notice.SeeState v. Mitchell139 Iowa 455, 116 N.W. 808, and cases there cited.

Even if, as counsel claim, Morseman is a mere place without a corporate or other organization, making its location the subject of judicial notice, yet its location is approximately shown by the testimony of the witnesses.Moreover, the person with whom the prosecuting witness sought refuge locates the place at which they met about ten miles from Clarinda.The route, course and distance which the appellant drove are stated with some degree of particularity by the complainant.The question of venue is one of fact for the jury, and with the data furnished by the testimony of these witnesses we can not say that the finding of the jury that the crime was committed in Page County is without support in the record.The beginning and end of the route were in Page County, and, unless by some extremely indirect course, their line of travel between the two towns must have been in that county.The possibility that they may have driven beyond the county line does not so overcome the force of the other...