State v. Icenbice

• Decision Date: 15 November 1904
• Citation: 101 N.W. 273,126 Iowa 16
• Parties: STATE OF IOWA v. ELVIN ICENBICE, Appellant
• Court: Iowa Supreme Court

101 N.W. 273

126 Iowa 16

STATE OF IOWA v. ELVIN ICENBICE, Appellant

Supreme Court of Iowa, Des Moines

November 15, 1904

Appeal from Poweshiek District Court.--HON. W. G. CLEMENTS, Judge.

THE defendant was indicted with others for the crime of rape, and on conviction of assault with intent to commit rape was sentenced to imprisonment in the penitentiary for the term of eight years. From this sentence he appeals.

Affirmed.

W. R Lewis and Tom H. Milner, for appellant.

Chas W. Mullan, Attorney-General, and Lawrence De Graff, Assistant Attorney-General, for the State.

OPINION

MCCLAIN, J.

The transaction which the prosecution sought to prove on the separate trial of this defendant under the indictment against him and others is the same as that sought to be proven by the prosecution on the several trials of one Orris Wolf, who has three times appealed to this court from conviction of assault with intent to commit rape under the same indictment. See State v. Wolf, 112 Iowa 458; 118 Iowa 564; 100 N.W. 1123.

I. The trial court overruled a motion for change of venue, based on the ground of excitement and prejudice on the part of the people of Poweshiek county, in which the crime was committed caused by the publication of alleged facts and details of the crime in the newspapers circulated in that county prior to the trial, and also arising from the fact of several trials in the same county of other defendants charged with the same crime. This motion was supported by an affidavit sworn to by twelve citizens of the county, stating their belief that the defendant could not obtain a fair trial because of the excitement and prejudice of the people of the county against him. A resistance to this application was made, supported by an affidavit of twenty-eight citizens of the county stating that to their knowledge there had been no inflammatory articles published in the newspapers of the county regarding the alleged crime, that there was no excitement or prejudice in the county against defendant, and that defendant could obtain a fair and impartial trial in that county. Some comment is made by counsel on the affidavit in resistance on the ground that it does not show that affiants were not related to the prosecutrix, nor that they did not stand in relation to her of guardian or ward, employer or employe, or any other confidential relation; but it is sufficient to say that we find no requirement in the statute that such relations to the prosecutrix be negatived by those signing affidavits supporting the resistance to the application for a change. See Code, section 5346.

The application for a change of venue in a criminal case is addressed to the discretion of the trial judge, and he is required to decide the matter "according to the very right of it." See Code, section 5348. It is conceded by appellant that this court will not interfere with the conclusion of the trial court in ruling on the application for change except where there is a clear abuse of judicial discretion. State v. McDonough, 104 Iowa 6, 73 N.W. 357; State v. Edgerton, 100 Iowa 63, 69 N.W. 280; State v. Weems, 96 Iowa 426, 65 N.W. 387. We see no occasion here for interfering with the action of the trial judge. The newspaper comments complained of are not set out in the application, nor shown by the affidavit in support of it, nor are we justified, on the mere allegation of excitement and prejudice resulting from previous trials involving the same transaction, denied as it is in counter affidavits, to find that the trial court abused its discretion in refusing to grant the change on that ground.

II. It is urged for the appellant that the jury was sworn before defendant had exhausted his peremptory challenges. The record shows that, after the court had called on the prosecution and the defense alternately to exercise their peremptory challenges, twelve jurors being in the box, in each instance accepted for cause, the prosecution waiving its peremptory challenges, and the defendant, after interposing four peremptory challenges, having waived his two succeeding peremptory challenges, the court, without calling upon either of the parties to exercise another or further peremptory challenge, and the defendant not having waived any more or other of his peremptory challenges than the fifth and sixth, the jury was by the court duly sworn. Defendant at this time did not object to the swearing of the jury, nor ask to interpose any further challenges, and the case before us is thus distinguished from State v. Hunter, 118 Iowa 686, 92 N.W. 872, on which counsel for appellant reply; for in that case counsel for defense protested that they had another challenge, and were not through with their challenges. The ruling of the lower court in that case was that the waiver of one challenge constituted a waiver of all other peremptory challenges to the same jurors. This ruling was held erroneous, but there is nothing in the opinion to require a reversal of the case before us, in the absence of any showing that the defendant expressed an intention to exercise further peremptory challenges, or objected to the...