State v. Hodges
| Decision Date | 24 June 1924 |
| Docket Number | No. 35697.,35697. |
| Citation | 198 Iowa 1208,199 N.W. 297 |
| Parties | STATE v. HODGES. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Montgomery County; O. D. Wheeler, Judge.
Indictment for manslaughter. Upon a plea of not guilty, a trial was had and verdict of guilty rendered. Judgment being pronounced thereon, defendant has appealed. Affirmed.John J. Hess, of Council Bluffs, and B. A. Shaver, of Red Oak, for appellant.
Ben J. Gibson, Atty. Gen., Maxwell A. O'Brien, Asst. Atty. Gen., Floyd E. Billings, Co. Atty., of Red Oak, and W. E. Mitchell, of Council Bluffs, for the State.
By the verdict, the defendant was found responsible for the death of Mrs. Ida Anderson and was found guilty of manslaughter. The death of Mrs. Anderson resultedfrom an automobile collision which was caused by very reckless conduct on the part of the defendant. It is upon such reckless conduct that the charge of manslaughter was predicated. The material testimony relied on by the state for conviction was wholly undisputed except in one rather unimportant respect. It appeared from the testimony offered by the state that the defendant was drunk at and before the time of the collision. The testimony offered by the defendant negatived this contention and was to the effect that the defendant was not drunk. No other material fact relied on by the state is traversed by the testimony. The accident resulting in the death of Mrs. Anderson occurred about 3:30 p. m. of June 3, 1922. While she and her husband were in an automobile and traveling westward, they stopped upon the highway in front of the home of the witness Campbell. The husband left the automobile and went to or near the residence where he engaged in conversation with Campbell, Mrs. Anderson remaining in the automobile which then occupied a position on the crest of a hill and on the right side of the highway and was facing westward. Shortly thereafter, the defendant approached over the same highway from the east driving a high-powered car at a speed of approximately 70 miles an hour. At such speed, he collided with the Anderson car. The force of the defendant's car carried the Anderson car forward along the road for a considerable distance and finally overturned it. It also penetrated the gas tank and set the car afire. Mrs. Anderson became pinned under the car and was then and there burned to death in the presence of her husband and Campbell, who made heroic efforts to save her, without avail. In such efforts, the husband received burns which resulted fatally also to him. That such an event should stir a community both with sorrow and indignation may be readily taken for granted. The principal complaint presented for our consideration is that the defendant was denied a fair and impartial trial because he was denied a change of venue from the county of Montgomery where these events occurred. A criminal charge was filed against the defendant immediately following the accident. His preliminary hearing was had a few days thereafter wherein he was bound over to the grand jury and admitted to bail. An indictment was returned against him on October 30, 1922, and his trial was commenced on February 26, 1923. On January 3, 1923, he filed his petition for a change of venue on the ground of prejudice against him in the community. This petition was resisted by the state and was overruled by the court. On January 10th, he filed a second petition to the same effect which was also overruled. On February 23d, he filed a third petition to the same effect which was also overruled. The principal errors assigned as a ground of reversal are predicated upon the refusal of the court to grant the change of venue.
[1] I. The first application for change of venue was supported by the affidavits of the defendant himself and of four other affiants. The following from the affidavit of the defendant contains the substance thereof:
“That at the time of said collision and since that time, there has been great excitement and prejudice exists in Montgomery county, Page county, and a part of Cass county; that following the occurrence upon which said indictment is based, many newspaper articles were published in the community and in Montgomery county, Iowa, which were unfair and unfavorable to me, and that like articles were distributed in the newspapers published and circulated in Page county, Iowa.
And there now exists great excitement and prejudice against me in Montgomery county, Iowa, and the same also exists in Page and in a portion of Cass county, Iowa; that by reason of the aforesaid, I cannot obtain a fair and impartial trial upon the charge made against me in Montgomery county.”
The following from the affidavit of J. W. Brummett contains the substance of such affidavit and of affidavits of other affiants:
“That I have conversed with many people in said county with reference to said matter and have heard the same discussed; that from what I know and have heard in connection with the aforesaid matters, it is my belief that because of excitement and prejudice against him it is impossible for the defendant to obtain a fair and impartial trial of the charge made against him in Montgomery county, Iowa.”
In addition to the foregoing, certain newspaper publications were put in evidence which will be considered later.
The application was resisted by the state, and the resistance was supported by affidavits of affiants which negatived the claim of defendant on the question of prejudice in the community. It will be seen, therefore, that the question involved was one wholly of opinion. Excepting in one respect to be referred to later, no specific or concrete fact was brought to the attention of the court in support of defendant's contention that he could not obtain a fair trial. There is nothing in this feature of the record that would justify us in finding any abuse of discretion on the part of the trial court. The recitals contained in the affidavits presented by the defendant are such as could be made without actual bad faith in any criminal prosecution in any county where the crime involved was of such a nature as to attract public attention.
In support of the later applications made, additional affidavits were filed which contained some amplifications. What we have said, however concerning the former affidavits is also applicable to the later ones, and we will not discuss them in further detail. We hold, therefore, that so far as the recitals of the affidavits are concerned, they are not such as would justify us in finding an abuse of discretion on the part of the trial court.
II. The more specific and concrete facts relied on by the defendant in support of his applications for change of venue consist of certain newspaper publications, copies of which appear in the record. These were: Red Oak Sun, issue of June 9, 1922; the Villisca Review of the same date and of June 16th and June 23d; the Red Oak Express of June 5th; the Shenandoah Sentinel Post.
Taking these publications in the order here named, the article published by the Red Oak Sun contained the following caption:
“A Fatal Collision.
Mrs. Aaron Anderson Cremated Under Car. Her Husband Probably Fatally Burned--Two Others Hurt--Jas. R. Hodges Still in Jail.
The Dead: Mrs. Aaron Anderson, Stanton, burned to death under the car when it turned over after collision.”
The article itself was a comparatively dispassionate recital of the actual facts as they appeared from the testimony on the preliminary hearing. It set forth literally the testimony of the witness Campbell at the preliminary hearing, he being the only surviving witness to the accident. The following excerpt from the article fairly indicates the spirit of fairness permeating the article:
“What They Claim.
People who were early on the scene of the accident disagreed about the cause of the tragedy. The hill over which Hodges was coming toward the west is a sharp one, and the road is narrow. Hodges claims that he did not see the car until he came over the hill, while witnesses declare he could have seen it from a point 60 rods east of there. The exact position of the car when struck will probably have some bearing on the case. Witnesses at the inquest declared Hodges was driving at a high rate of speed, and there is no question that his car, wrecked as it was and with brakes set, went to the bottom of the hill before being stopped. The Anderson car was completely destroyed by the fire and the Hodges car was badly wrecked, although it did not turn over. On account of the seriousness of the case, the Sun again refers to the testimony of Mr. Campbell, rather than give circulation to many rumors.”
On the same date, June 9th, the Villisca Review published an account of the accident. This article also purports only to state facts. In the light of the undisputed evidence introduced at the trial and appearing in this record, this article was entirely fair. Its closing statement was as follows:
In its issue of June 16th, this same paper gave an account of the funeral of Aaron Anderson, which was attended, as stated, by more than 1,500 people. The only reference contained in this article to the defendant was that he had been unable to secure bond. The same paper in its issue of June 23d contained an account of a preliminary examination and set forth literally the testimony of the witness, Campbell. The Red Oak Express of June 5th contained an account of the...
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