State v. Linde
| Decision Date | 18 June 1880 |
| Citation | 6 N.W. 168,54 Iowa 139 |
| Parties | THE STATE OF IOWA v. F. AND G. LINDE. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Franklin district court.
Indictment for maliciously killing a horse, the property of W. H. Hoxie. From the judgment the defendants appeal.Fred. Gilman, for appellants.
J. F. McJunkin, Attorney General, for the state.
1. The defendants filed a motion for a change of venue, on the ground there was such excitement and prejudice against them that they could not receive a fair and impartial trial in the county. The motion and affidavit of the defendants was supported by the affidavits of 18 persons, who state in terms that such prejudice did exist; but no facts were stated in any of the foregoing affidavits showing grounds for the existence of the belief expressed by the affiants, one of whom was a witness for the state. Mr. Dow, an attorney for the defendants in the court below, also filed an affidavit, in which he stated that such prejudice did exist, and that defendants could not receive a fair trial in the county. He further stated that the prosecuting witness had been a resident of the county for 15 years, and held important offices in the county, and was a person of great influence; that a large number of persons attended the preliminary examination, and heard the evidence, which was largely discussed by the citizens of the county; that a newspaper published and largely circulated therein “took sides,” and it was stated in said paper defendants were probably guilty, and censured the justice for discharging them; that the existing prejudice was caused by the prosecuting witness and his friends.
The state filed the counter affidavits of 19 persons, who stated in general terms that such prejudice did not exist, and that defendants could receive a fair and impartial trial in the county, but no facts were stated showing grounds for the opinion expressed by affiants. It is said the affidavits filed by the state were not sworn to before any person authorized to administer oaths. The verification was by a notary public, and all notaries have power to administer oaths. Code, § 277. We, however, suppose the real point relied on is that it does not appear from the verification, or otherwise, that the notary was such in the county where the affidavits were made. It may be this is essential. Willard v. Cramer, 36 Iowa, 22. Conceding it to be so, the affidavit of the defendants was sworn to before a notary public, and the verification is the same as that to the affidavits for the state. If one was not sworn to, the other was not, and therefore the court did not err in overruling the motion for the reason stated. The defendants were not entitled to a change of venue as a matter of right, but the court was bound to determine the question presented according to the very right of it. Code, § 4374. We cannot say the discretion reposed in the district court by the statute has been abused. The State v. Spurbeck, 44 Iowa, 667;Same v. Mewherter, 46 Iowa, 88.
2. The defendants challenged the panel of trial jurors, which was sustained, and thereupon the court directed a precept to issue, directing the sheriff to summon the requisite number of jurors. This action was in accord with Code, § 244. The panel thus summoned was also challenged on several grounds, and the defendants in the motion asked leave to introduce oral evidence to prove the grounds stated. This was refused, but the court informed counsel they could introduce affidavits showing the facts. This was declined. The action of the court is said to be erroneous, because section 4402 of the Code provides that upon the trial of a challenge to the panel the officers whose irregularity is complained of may be examined, as well as other persons, to prove or disprove the facts alleged as the ground of challenge. It will be observed the section of the Code just referred to does not define the manner of the examination or in what form the evidence shall be introduced. Section 2913 of the Code provides that evidence to sustain or resist a motion “may be in the form of affidavits, or in such other form as the parties may agree on, or the court or judge direct; and provision has been made for obtaining the same from...
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