State v. Grange

• Citation: 62 N.W. 664,94 Iowa 60
• Parties: STATE OF IOWA v. JAMES LA GRANGE, Appellant
• Decision Date: 02 April 1895
• Court: United States State Supreme Court of Iowa

62 N.W. 664

94 Iowa 60

STATE OF IOWA v. JAMES LA GRANGE, Appellant

Supreme Court of Iowa, Des Moines

April 2, 1895

Appeal from Poweshiek District Court.--HON. D. RYAN, Judge.

The defendant was indicted and convicted of the crime of "breaking and entering a building in which goods merchandise, and valuable things were kept for use and deposited." Judgment of imprisonment in the penitentiary for three years and for costs was entered against him from which he appeals.

Affirmed.

J. H Patton for appellant.

Milton Remley, attorney general, and Thos. A. Cheshire for the state.

OPINION

Given, C. J.

I.

The defendant petitioned for a change of venue on the ground of prejudice of the presiding judge. The petition was denied, and of this defendant complains. The only evidence of prejudice is the affidavit of the defendant, stating in general terms: That the judge was prejudiced, and the affidavit of his counsel to this effect. That at the time of the trial of this case at the preceding term, on which trial the jury failed to agree, after that jury had retired, the judge said to the counsel that the defendant was guilty, and that the jury would be back inside of an hour or two, with a verdict of guilty. That on the same day, when defendant's counsel requested that another criminal case against the defendant be set down for trial, the judge remarked: "You don't want two convictions in one term. If that jury should fail to convict, you can try no more of those cases this term." This petition was addressed to the sound discretion of the court, and we may not interfere, unless it appears that such discretion has been abused. Having heard all the evidence in the case, it is quite probable that the judge has formed an opinion as to the guilt of the defendant. Judging from the testimony in the record before us, and which we may presume to be the same as on the former trial, it is difficult to see how the judge could hear it without reaching that conclusion. The prejudice contemplated in the statute is, however, not shown to exist on the part of the judge merely because he has formed an opinion under such circumstances. To so hold would cause changes of venue in most cases on a second trial, while the judge, notwithstanding his opinion, was able to preside with perfect impartiality. If to entertain an opinion as to the guilt of an accused party constituted the prejudice contemplated in the statute, then most criminal cases should be withdrawn from the jury after the evidence is introduced and a change of venue ordered, because the judge, having heard the evidence, has usually formed an opinion before instructing the jury. The prejudice contemplated is not merely a belief as to the guilt or innocence of the party, but the presence of such state of feeling as will incline the judge in his rulings and instructions against the accused. The judge could not well take the stand and admit or deny the making of the statements alleged to have been made by him, and we may infer from the fact of his denying the petition that he was conscious of having no prejudice against the defendant that would influence him in the trial. The record fails to disclose any indication of prejudice or abuse of discretion in overruling the petition. See State v. Mewherter, 46 Iowa 88; State v. Foley, 65 Iowa 51, 21 N.W. 162; State v. Hale, 65 Iowa 575, 22 N.W. 682.

II. Defendant questions the sufficiency of the evidence to sustain the verdict, urging especially that there is no corroboration of the testimony of the accomplice, tending to connect the defendant with the commission of the crime charged. We will not set out or discuss the evidence. It is sufficient to say that there can be no question but that the crime charged was committed, and that the testimony of the accomplice...