State v. Gibson
| Decision Date | 01 July 1927 |
| Docket Number | 37943 |
| Parties | STATE OF IOWA, Appellee, v. GEORGE H. GIBSON, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED DECEMBER 17, 1927.
Appeal from Union District Court.--HOMER A. FULLER, Judge.
Indictment for murder in the first degree. The defendant entered a plea of not guilty, and was tried to a jury, which returned a verdict finding the defendant guilty of murder in the first degree, and directed that defendant be imprisoned in the state penitentiary for the remainder of his life.
Affirmed.
C. T Gibson, for appellant.
John Fletcher, Attorney-general, Neill Garrett, Assistant Attorney-general, and George A. Johnston, for appellee.
The defendant resided with his father and a married brother on a farm adjacent to the town of Thayer, in Union County, Iowa. On the 8th day of March, 1926, one Collings, the sheriff of Union County, accompanied by one Bourke, drove in an automobile to the home of the appellant, for the purpose of serving certain papers upon the appellant which related to the condemnation of certain land. The evidence discloses that the sheriff stopped at the house, and talked with the sister-in-law of the appellant, and inquired where appellant was. He then proceeded in the direction of the barn, which was located south and east from the house. The man Bourke alighted from the car, and started in the same general direction as the sheriff, toward the barn. When approximately 50 feet from the barn, the sheriff was struck in the abdomen by a bullet, which came from the direction of the barn door. This door was in two sections, one above the other, and the shot came through the crack between the two sections of the door, leaving a mark on the lower section. The sheriff was taken to the town of Thayer by Bourke, and later to a hospital, where he died, on the following day. Upon an examination of the barn shortly after the shooting, an empty cartridge shell was found on the floor, and a high-powered rifle behind some harness. The shell fitted the rifle. Very shortly after the shooting, the defendant was arrested by Bourke in the town of Thayer. There were witnesses whose evidence tended to show that the appellant was seen coming from the direction of the barn to the town of Thayer at or about the time of the shooting. The appellant was in a store in Thayer at about the time that Bourke arrived in the town with the wounded officer. There was evidence tending to show that it would have taken about 4 1/2 minutes to walk from the barn to the store, and approximately the same length of time to have driven the automobile as it was driven from the Gibson place to the town by Bourke. The appellant, as a witness in his own behalf, denied the shooting, and claimed that he left home for town about 1:30, and did not return prior to his arrest. There was evidence of threats by the appellant against the officer. The testimony of the witness Bourke and the dying declaration of the officer are to the effect that they saw Gibson come from the south and disappear behind the barn shortly before the sheriff walked toward the barn door.
An indictment was returned by the grand jury on the 10th day of April, 1926, charging the appellant with murder in the first degree. On April 15, 1926, the appellant entered a plea of not guilty, and the time for trial was fixed for May 17, 1927, at which time the trial was commenced. The appellant filed a petition for change of venue, which was overruled, and also a petition for change of trial judge, which was likewise overruled.
The case is presented in this court with little regard for the rules of this court respecting appeals in criminal cases. Assignments of error relied upon for reversal are not argued in accordance with our rules, and there is no citation of any authorities whatever to support the contentions of the appellant. Upon the record, we would be amply justified in disregarding the appeal, under the rules announced by this court in State v. Ivey, 196 Iowa 270, 194 N.W. 262; State v. La Vere,194 Iowa 1373, 191 N.W. 93; State v. Vandewater, 203 Iowa 94, 212 N.W. 339; and other similar cases.
I. The appellant assigns error as follows:
"The court erred in overruling the motion of the defendant for new trial and in arrest of judgment, filed herein, and for each of the several reasons therein set forth."
We have repeatedly held that such an assignment does not raise any question for consideration on appeal. State v. Smith, 192 Iowa 218, 180 N.W. 4; State v. Harbour, 193 Iowa 657, 187 N.W. 454; State v. Gill, 202 Iowa 242, 210 N.W. 120.
II. The appellant predicates error upon the failure of the court to grant the appellant a change of place of trial on the showing that was made with regard to prejudice existing against him in Union County. The offense was committed on the 8th day of March, 1926; the defendant was indicted April 10, 1926, and was placed upon trial on May 17, 1926. Union County has a population of something like 17,000 people, and unquestionably the fact of the killing and the purported circumstances surrounding it were well known through the country. Various newspapers of the county published accounts of the matter, and other papers of general circulation in the county, published elsewhere in the state, also carried accounts of it. One of these newspaper articles was inflammatory, and would have a tendency to arouse passion and prejudice. It was published in a small town in a remote part of the county, and had a very limited circulation. The affiants whose affidavits supported the motion for change of venue were brought before the court and examined in regard to said affidavits, and practically repudiated the statements therein contained, to the effect that the appellant could not secure a fair and impartial trial in that county.
The matter of the granting of a change of venue in a criminal action is largely a matter resting within the sound discretion of the trial court, and unless such discretion is abused, the ruling will not be disturbed by us. State v. Sipes, 202 Iowa 173, 209 N.W. 458. It would serve no useful purpose for us to set out in the record the various affidavits and newspaper articles referred to, and would unnecessarily incumber this record. We are free to say that, upon the showing made, it would have been very proper for the court to have granted a change of venue in this case. Great care, discretion, and good judgment should always be exercised by the trial court to see that a defendant charged with crime is given a fair and impartial trial, before an unbiased jury. Upon the record in this case, we are disposed to hold that the showing is not such as to require us to find that there was an abuse of discretion on the part of the trial court in denying the motion for change of venue. See State v. Hodges, 198 Iowa 1208, 199 N.W. 297.
The same may be said to be true of the action of the trial court in refusing a change of judge. The right to a change of judge is not one of absolute right. The judge is entitled to consult his own...
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