State v. Perigo

• Decision Date: 14 June 1886
• Citation: 70 Iowa 657,28 N.W. 452
• Parties: STATE v. PERIGO.
• Court: Iowa Supreme Court

70 Iowa 657

28 N.W. 452

STATE

v.PERIGO.

Supreme Court of Iowa.

June 14, 1886.

Appeal from Adams district court.

The defendant was accused of the crime of murder, committed as was charged in the indictment, in the killing of one John Hidinger. He was convicted of murder of the second degree, and sentenced to a term of imprisonment in the penitentiary, and from that judgment he appealed to this court.W. A. Spurrier, Thomas L. Maxwell, J. L. Brown, and Smith McPherson, for defendant.

A. J. Baker, Atty. Gen., for the State.

REED, J.

The following is the indictment against the defendant: “The grand jury * * * accuse Robert Perigo of the crime of murder of the first degree. The said Robert Perigo, * * * in and upon the body of one John Hidinger, then and there being, willfully, feloniously, premeditatedly, and of his malice aforethought, did commit an assault with a deadly weapon, being a pistol, then and there held in the hand of the said Robert Perigo, and loaded and charged with gunpowder and leaden balls; and then and there the said Robert Perigo, with the specific intent to kill and murder the said John Hidinger, willfully, feloniously, deliberately, and premeditatedly, and of his malice aforethought, shot off and discharged the contents of said deadly weapon at, against, and into the body of the said John Hidinger, thereby willfully, deliberately, feloniously, premeditatedly, and of his malice aforethought, inflicting upon the body of the said John Hidinger a mortal wound, of which mortal wound the said John Hidinger then and there died. * * *”

The district court ruled that the indictment charged the crime of murder of the first degree, and put the defendant on trial for that offense. Counsel for the defendant contend that the language of the indictment charges murder of the second degree only; but we are of the opinion that the ruling of the district court is right. It is distinctly averred in the indictment that the killing was committed willfully, deliberately, and premeditatedly, and that it was done with malice aforethought. Every element of murder of the first degree, as defined by our statute, (Code, § 3849,) is alleged to have been present in the killing. The present indictment contains the same averments as that in State v. Shelton, 64 Iowa, 333, S. C. 20 N. W. Rep. 459, which we held charged murder of the first degree. See, also, State v. Townsend, 24 N. W. Rep. 535.

2. The killing of said John Hidinger occurred on the seventh day of May, 1883. The indictment was returned on the nineteenth of the following October. During that term of the court defendant was arraigned, and pleaded not guilty. He then filed a motion for a continuance, on the ground that he would not be able to prepare for trial at that term. This motion was sustained, and the cause continued to the next term, which convened on the seventeenth of the following March. On the morning of the second day of that term he filed a petition for a change of venue, on the alleged ground of excitement and prejudice against him in the county. This petition was verified by defendant and three disinterested inhabitants of the county, and in support of the application he filed the affidavits of 12 other citizens of the county, and the state filed the affidavits of 13 residents in resistance of it. The district court overruled the petition, and the cause was tried in that county. It was alleged in the petition that the friends and relatives of said Hidinger were well and favorably known in the county, and had a controlling influence upon the people of the county; that, soon after the killing, false and exaggerated statements concerning the transaction were published in three newspapers, which had a general circulation in the county; that these publications reflected severely upon defendant's character, and greatly inflamed the public mind, and prejudiced the people against him; that prominent citizens of the county had openly advised the people to lynch him, and that the officers who at the time had him in custody were apprehensive that he would be taken from their custody by the people, and summarily dealt with. It is also alleged that defendant believed that the excitement and prejudice continued at the time the petition was verified, and that it would prevent him from having a fair and impartial trial in that county. The witnesses whose affidavits were filed in support of the petition own to the existence of excitement and prejudice among the people of the county at the time of the preliminary examination, which was held soon after the killing. They also swore to the publication in the newspapers at that time of statements calculated to inflame the people against defendant, and some of them swore that rumors were rife in the community at the time of an organization among the people in that portion of the county in which the killing occurred to lynch defendant. But none of them claimed to have had any personal knowledge of the existence of such organization. They all swore, however, that, in their opinion, defendant could not have a fair trial in that county. The witnesses whose affidavits were filed by the state in resistance of the petition, swore that they were acquainted with the feelings and sentiments of the people in their neighborhoods, and that no excitement or prejudice existed against defendant which would prevent him from having a fair and impartial trial in the county.

The application was addressed to the sound discretion of the district court. It has often been held by this court that unless an abuse of discretion in denying the application for a change of venue is shown, the decision will not be interfered with. State v. Mewherter, 46 Iowa, 88;State v. Ray, 50 Iowa, 520;State v. Williams, 63 Iowa, 135;S. C. 18 N. W. Rep. 682. Considering all of the facts and circumstances disclosed by the record in the present case, we cannot say that the district court abused the discretion with which it is clothed by the statute. It is doubtless true that a very considerable excitement was created by the killing, and that some prejudice arose against the defendant soon after the occurrence. But this, in a great measure, was confined to the portion of the county in which the killing occurred. We do not believe that the people of the county generally were affected by it. Nearly a year had elapsed since the occurrence, and it is reasonable to suppose that the excitement created by it had in a great measure subsided. The petition and affidavits filed in support of it afforded but little positive evidence of the existence of excitement and prejudice at the time they were filed. They related almost exclusively to the excitement which had existed at about the time of the preliminary examination, and much that was contained in the affidavits was mere hearsay, and many things that are stated as matters of fact are very clearly not within the personal knowledge of the affiants. In addition to this, the defendant had obtained one continuance of the cause to enable him to prepare for his trial. Whatever of prejudice there was against him existed at the time of the indictment, and was then known to him and his counsel; but no effort was made at that term to obtain a change of venue. It is true, an effort was made to explain this circumstance, but still it was one which the court might properly take into account in determining whether a change ought to be granted; and when it and the other matters shown by the record are considered, we cannot say that the court erred in refusing to grant the change.

3. The killing of Hidinger is not denied by defendant, but he claims that he acted in self-defense. The parties were neighbors, and had lived for a number of years on adjoining farms. On the day of the killing defendant went to Hidinger's place, and took away a dog which each of the parties claimed to own. After they had parleyed for some time as to his right to take the animal, defendan...