State v. Levich, No. 30557.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtPRESTON
Citation156 N.W. 824,174 Iowa 688
Docket NumberNo. 30557.
Decision Date11 March 1916
PartiesSTATE v. LEVICH.

174 Iowa 688
156 N.W. 824

STATE
v.
LEVICH.

No. 30557.

Supreme Court of Iowa.

March 11, 1916.


Appeal from District Court, Polk County; Charles A. Dudley, Judge.

This defendant, Levich, A. E. Philleo, and another were jointly indicted for keeping a house of ill fame. Separate trials were granted. This appeal is from the conviction of Levich. Affirmed.

[156 N.W. 825]

Parsons & Mills, of Des Moines, for appellant.

George Cosson, Atty. Gen., John Fletcher, Asst. Atty. Gen., and George A. Wilson, Co. Atty., of Des Moines, for the State.


PRESTON, J.

Defendant was the keeper of a house of ill fame as charged. The record is shocking. There is no doubt of his guilt. The sufficiency of the evidence is not challenged. Indeed, it could not be. There are 18 assignments of error, some of which are not argued. They relate to the overruling of motions for a continuance; a motion for change of venue; the alleged error in the rulings of the court on the admissibility of testimony; alleged error in the instructions; and excluding a codefendant from the court during the trial. The motions for continuance and for change of venue are argued together.

[1] The motion for continuance was on the ground that defendant would not have time to prepare for trial, and that the case was assigned for trial ahead of other cases wherein indictments had been returned before the indictment in this case. It seems there was some delay in the defendants paying their attorneys their retainer fee. This defendant had employed the counsel who afterwards made his defense even before the indictment was returned, with the view of defending against the charge which he knew was pending against him. It is no concern of the defendants that their case was assigned ahead of others, provided they had sufficient time to prepare for trial. The assignment of causes is under the control of the trial court, who is in a position to know the real situation. The indictment was returned by the grand jury on March 10, 1915. They entered their plea of not guilty on March 11th, and on that day, on motion of the county attorney, the case was assigned for trial March 18th. On March 18th a motion for continuance was filed. While the motion was overruled, the trial was postponed until the morning of the 22d, and again until 2 o'clock p. m. of that date. There was no claim of the absence of witnesses or of sickness on the part of the defendant or his attorneys. There was no change of attorneys. The law is well settled in this kind of cases, and we see no reason in this case why the evidence for the defense might not be readily obtained. The parties are residents of the state. It is, of course, desirable, and the defendant has a right to reasonable time in which to prepare for trial. The statute provides that defendant shall, if he demands it, upon entering his plea, be entitled to three days in which to prepare for trial. Aside from this, there is no statutory provision that gives to a defendant any particular time in which to prepare for trial. The rule is that it is so much within the discretion of the trial court that its determination will not be disturbed unless it is clearly shown that there was an abuse of discretion. State v. Baker, 146 Iowa, 612, 125 N. W. 659;State v. Maher, 74 Iowa, 77, 37 N. W. 2. And there are many other cases to the same effect. Under the record, we are of opinion that no abuse of discretion has been shown.

[2][3] 2. As to the motion for change of

[156 N.W. 826]

venue, as soon as the jury was impaneled the court ordered that the jury be kept together during the trial. When the impaneling of the jury was begun, the parties waived the taking down of the examination of the jurors as to their qualifications, so that we do not have any record as to whether the articles published in the newspapers made any impression upon those who served as jurors, or that they had even read any of the articles. The defendant waived his last peremptory challenge. The motion was supported by affidavits of the requisite number of freeholders, and of the defendants, who exhibited clippings from the newspapers. The dates upon which the articles were published are not all shown, but it is evident that they continued over some space of time. About 50 pages of the abstract are taken up with the motion for a change of venue and the exhibits attached. It is, of course, impracticable to set them out at any length within the proper limits of an opinion. Some of them purport to give the stories as told by two girls who came to Des Moines from Ottumwa and were afterwards said to have been inmates of the house of ill fame kept by the defendant, and refer to the raid on the Walnut Hotel, which was the place kept by defendant, and of the arrest of defendant, and the character of the place and the girls, who frequented it. There were also stories of attempts to influence the girls as to their being witnesses against defendant and of the girls' retention in a home in Des Moines pending the submission of the case to the grand jury. Some of the articles were not written in a serious vein. One is entitled:

“Our Movie To-day. Characters: Jennie Zaring, Twenty, of Ottumwa, a Wanted Witness; W. E. Weaver, Police Sergeant, who kidnapped her and then foiled the villain; A. E. Philleo (for the purpose of this movie) First Villain; Harry Levich, Second Villain; Miss Ethel Fischer, Policewoman; Taxicab Drivers, and others.”

The article continues, “Prolog,” and recites the fact that Levich was convicted in the police court of operating a disorderly house at the Walnut Hotel, and that charges of operating a house of ill fame were filed against the three defendants, who were afterwards indicted; that the Zaring girl is sought to corroborate the story of one of the other girls. Then follows:

“Act I; Scene, Ottumwa; Time, Monday”

--and refers to some of the officers going to Ottumwa in an attempt to locate the Zaring girl. Then follows:

“Act II. Weaver arrives in Des Moines with the Zaring girl. But where is Policewoman Fischer and the Krull girl: Business of tense moments until next train when the policewoman arrives with her charge and reports no activity on the part of the villains,” etc.

Another article refers to the girls being before the grand jury, and purports to state some of the things they are supposed to have said. Another article is in part:

“Our Movie To-day. The Perils of Jennie. Episode No. 2. Act. I. Outside St. Monica's. ‘It is near four o'clock. All night have guarded this place and not once has a stranger appeared. It is time relief should be coming for us. My hands are numb with cold.’ The voice is that of Wilson Skinner, policeman assigned by the Great Chief Crawford to keep aliens from St. Monica's Home, where Jennie is under cover.”

Then follow acts II, III, and IV. Another has reference to the meeting of the grand jury, and another states that the police are involved in indictment of Levich and Philleo. Another relates to the filing of charges against...

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4 practice notes
  • Morgan v. Muench, No. 30576.
    • United States
    • United States State Supreme Court of Iowa
    • March 11, 1916
    ...and proved. It is true, of course, that if any claim for damages is made for these items they should be proved. But we think there [156 N.W. 824]is evidence upon these points. The appellant is shown to be a man of considerable means, so that from that standpoint a marriage with defendant wo......
  • State v. Moore, No. 41607.
    • United States
    • United States State Supreme Court of Iowa
    • December 12, 1933
    ...trials. Accordingly, the district court continued the cause to the March term. We said in State v. Levich, 174 Iowa, 688, on page 690, 156 N. W. 824, 825: “The statute provides that defendant shall, if he demands it, upon entering his plea, be entitled to three days in which to prepare for ......
  • State v. Bogardus, No. 33071.
    • United States
    • United States State Supreme Court of Iowa
    • February 16, 1920
    ...v. Concord, 172 Iowa, 467, 476, 154 N. W. 763;State v. Mulhollen, 173 Iowa, 242, 248, 155 N. W. 252;State v. Levich, 174 Iowa, 688, 696, 156 N. W. 824;State v. See, 177 Iowa, 316, 319, 158 N. W. 667;Armstrong v. James & Co., 155 Iowa, 562, 564, 136 N. W. 686;Clemens v. Railway Co., 163 Iowa......
  • State v. Twine, No. 40302.
    • United States
    • United States State Supreme Court of Iowa
    • December 9, 1930
    ...appears that there has been an abuse of discretion. See State v. Candler, 204 Iowa, 1355, 217 N. W. 233;State v. Levich, 174 Iowa, 688, 156 N. W. 824;State v. Stegner, 72 Iowa, 13, 33 N. W. 340. (2) The affidavits in support of the motion do not show “efforts constituting due diligence whic......
4 cases
  • Morgan v. Muench, No. 30576.
    • United States
    • United States State Supreme Court of Iowa
    • March 11, 1916
    ...and proved. It is true, of course, that if any claim for damages is made for these items they should be proved. But we think there [156 N.W. 824]is evidence upon these points. The appellant is shown to be a man of considerable means, so that from that standpoint a marriage with defendant wo......
  • State v. Moore, No. 41607.
    • United States
    • United States State Supreme Court of Iowa
    • December 12, 1933
    ...trials. Accordingly, the district court continued the cause to the March term. We said in State v. Levich, 174 Iowa, 688, on page 690, 156 N. W. 824, 825: “The statute provides that defendant shall, if he demands it, upon entering his plea, be entitled to three days in which to prepare for ......
  • State v. Bogardus, No. 33071.
    • United States
    • United States State Supreme Court of Iowa
    • February 16, 1920
    ...v. Concord, 172 Iowa, 467, 476, 154 N. W. 763;State v. Mulhollen, 173 Iowa, 242, 248, 155 N. W. 252;State v. Levich, 174 Iowa, 688, 696, 156 N. W. 824;State v. See, 177 Iowa, 316, 319, 158 N. W. 667;Armstrong v. James & Co., 155 Iowa, 562, 564, 136 N. W. 686;Clemens v. Railway Co., 163 Iowa......
  • State v. Twine, No. 40302.
    • United States
    • United States State Supreme Court of Iowa
    • December 9, 1930
    ...appears that there has been an abuse of discretion. See State v. Candler, 204 Iowa, 1355, 217 N. W. 233;State v. Levich, 174 Iowa, 688, 156 N. W. 824;State v. Stegner, 72 Iowa, 13, 33 N. W. 340. (2) The affidavits in support of the motion do not show “efforts constituting due diligence whic......

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