State v. Peacock

• Decision Date: 17 November 1925
• Docket Number: No. 36764.,36764.
• Parties: STATE v. PEACOCK.
• Court: Iowa Supreme Court

201 Iowa 462

205 N.W. 738

STATE

v.PEACOCK.

No. 36764.

Supreme Court of Iowa.

Nov. 17, 1925.

Appeal from District Court, Henry County; Oscar Hale, Judge.

Under an indictment for assault with intent to commit murder the defendant was convicted by a jury of assault with intent to commit manslaughter. From the judgment pronounced on said verdict, the defendant appeals. Affirmed.Lloyd L. Duke, of Ottumwa, for appellant.

Ben J. Gibson, Atty. Gen., and Neill Garrett, Asst. Atty. Gen., for the State.

ALBERT, J.

The state's case tended to show that on the 18th of May, 1924, the appellant, a resident of Fairfield, went to a stone quarry near Mt. Pleasant and with others engaged in a gambling game. He lost considerable money, and conspired with a Mexican by the name of Frank Garcia to hold up the gamblers. Garcia returned to Fairfield, brought his brother and another with him, and held up the gamblers and took their money. Peacock was not present at this particular time, but had been there a short time before and appeared shortly after the holdup. At some stage of the holdup one of the Mexicans shot one of the gamblers, one Swaney by name.

The first error assigned is the refusal of the court to grant a continuance. The indictment was returned on the 16th of October, 1924. Defendant was arraigned on the following day, and his trial set for the 24th of the same month. The trial commenced on the 28th of October, and on the 31st of October it was adjourned until November 3d for the purpose of permitting the defendant to secure two witnesses, Andrew and McHenry. Defendant was unable to secure the attendance of said witnesses, and on resumption of the trial on November 3d filed a motion for continuance, claiming that he had formerly had an understanding that the witnesses would be present, but on a subsequent interview found that they were out of the state and would not return to testify. Had counsel interviewed the witnesses in the first instance before entering upon the trial, instead of leaving the matter to others, they would probably have learned that the witnesses were adverse to entering the state, and could have taken their depositions.

[1] We have reviewed the statement of the grounds for continuance and the showing, as to defendant, expected to be proved by the two witnesses, and, in substance, find that at most it is only cumulative, as evidence had been introduced by other witnesses on most of the questions involved. More than this, we have held that the granting or refusal of a continuance is largely discretionary with the court, and refusal to grant a continuance is not ground for reversal unless the court has abused its discretion. State v. Hillman (Iowa) 204 N. W. 248;State v. Pell, 140, Iowa, 655, 119 N. W. 154;State v. Sterman (Iowa) 202 N. W. 222. We do not feel that the lower court abused its discretion in refusing this continuance.

[2] Another error is assigned, based on alleged misconduct in argument of the prosecuting attorney. Under the record there is nothing before us on this assignment. The argument complained of is not set out in the record; hence we are unable to say that the prosecutor exceeded the bounds of legitimate argument. State v. Walker (Iowa) 204 N. W. 215;State v. Chambers, 179 Iowa, 436, 161...