State v. Lounsbury

Citation178 Iowa 555,159 N.W. 998
Decision Date22 November 1916
Docket NumberNo. 31154.,31154.
PartiesSTATE v. LOUNSBURY.
CourtUnited States State Supreme Court of Iowa

OPINION TEXT STARTS HERE

Appeal from District Court, Adair County; J. H. Applegate, Judge.

Defendant was indicted, tried, and convicted of the crime of incest, and from the judgment imposed appeals. Affirmed.O. W. Witham, of Greenfield, and Carl P. Knox, of Stuart, for appellant.

D. A. Crowley, Co. Atty., and Frank B. Wilson, both of Greenfield, and Geo. Cosson, Atty. Gen., for the State.

DEEMER, J.

[1] There was ample testimony to justify the conviction of the defendant, and the verdict and judgment must stand, unless errors were committed by the court which justify a reversal. Many complaints are made of statements made in argument and during the trial of the case by the county attorney and a special prosecutor brought into the case by one interested in its outcome. Objections to these statements were sustained by the court at the time they were made. A single exception to this was a reference by the special prosecutor to the fact that defendant's counsel were having the arguments made for the state taken by the shorthand reporter. This reference, while not, perhaps, of much significance, was to a fact patent to the jury, and nothing said therein could have been prejudicial to the defendant.

[2] Other statements made in argument were not objected to, and no exception was taken. True, some of them were made grounds for a new trial, but the trial court was justified in denying the motion on this ground. The objections came too late. State v. Thomas, 135 Iowa, 717, 109 N. W. 900;Streeter v. Marshalltown, 123 Iowa, 449, 99 N. W. 114;Beans v. Denny, 141 Iowa, 52, 117 N. W. 1091;State v. Matheson, 142 Iowa, 414, 120 N. W. 1036, 134 Am. St. Rep. 426;Aken v. Clark, 146 Iowa, 436, 123 N. W. 379.

[3] II. Certain testimony was introduced by the state, which was first admitted over defendant's objections and thereafter excluded upon motion made by his counsel. Not only was it excluded, but the trial court in its instructions specifically withdrew the same from the consideration of the jury. Whatever error there may have been on the original ruling--and there is doubt about there being any error--the same was corrected by the trial court, and defendant has no ground for complaint.

[4][5] III. The only serious question presented relates to a ruling made by another judge of the same district upon a motion to remove special counsel and to exclude him from the case. This motion was bottomed upon section 305 of the Code, which reads in part as follows:

“* * * Nor shall any attorney be allowed to assist the county attorney in any criminal action, where such attorney is interested in any civil action brought or to be commenced, in which a recovery is or may be asked upon the matters and things involved in such criminal prosecution.”

The facts seem to be as follows: The indictment was found September 3, 1915, and it charged defendant with having intercourse with his daughter, naming her, on or about August 6, 1914. There have been two trials of the case, the first one before Hon. W. H. Fahey, Judge, on September 11, 1915, which resulted in a disagreement on the part of the jury. The application to remove counsel was made on September 11, 1915, and was denied by Judge Fahey. The second trial was before Judge Applegate, and this commenced on November 8, 1915. The motion to remove and exclude counsel on the second trial was at no time renewed. It seems that this special counsel was employed by the father of defendant's wife on the last day of March of the year 1915 to bring a divorce action for the wife against defendant, and that a petition for a divorce was filed in the district court of Adair county on the day after counsel's employment. The grounds stated for the divorce were that defendant had become intimate with other women. Defendant appeared by counsel to the divorce suit at the August, 1915, term, and on the 1st day of September filed a motion for more specific statement, asking that plaintiff give the names of the women whom she claimed defendant had been intimate with and the times and places where and when the adultery was committed. Upon the filing of this motion, special counsel withdrew his appearance in the divorce suit, and this was entered of record on September 2, 1915. Theretofore, and as soon as an appearance had been entered for defendant in the divorce suit, special counsel informed the father of the wife that he would not have anything more to do with the divorce action, and his employment terminated. This appearance was made on September 1, 1915, and thereafter plaintiff in the divorce suit was represented by H. J. Chapman, Esq. Pursuant to the motion for a more specific statement plaintiff in the divorce suit filed an amendment to her petition, in which she charged that the adultery of defendant was committed with his own daughter, the prosecutrix in this case.

An information, charging defendant with incest, was filed with a justice of the peace about April 1, 1915, but it does not appear that special counsel had anything to do with this, or that he had any part in any of the criminal proceedings against defe...

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