State v. Powell

• Decision Date: 12 November 1907
• Citation: 113 N.W. 761
• Parties: STATE v. POWELL ET AL.
• Court: Iowa Supreme Court

113 N.W. 761

STATE

v.POWELL ET AL.

Supreme Court of Iowa.

Nov. 12, 1907.

Appeal from District Court, Polk County; A. H. McVey, Judge.

The defendants were indicted for the crime of robbery jointly committed. On trial they were convicted, and from the judgment entered they appeal. Affirmed.C. J. Eller, for appellants.

H. W. Byers, Atty. Gen., and Chas. W. Lyon, Asst. Atty. Gen., for the State.

BISHOP, J.

The brief and argument for appellants is not in form as required by our rules. However, we gather that there are three matters complained of: (1) The insufficiency of the indictment; (2) erroneous statements of law in each of two instructions given by the court; (3) error in overruling motion for new trial. As far as appears, the indictment was not attacked in the court below by motion or demurrer. Notwithstanding this, we have examined it with care, and find that it charges an offense under Code, §§ 4753, 4754. No exception was taken to the giving of the instructions complained of, nor was the correctness of either thereof challenged by the motion for new trial. In this state of the record, we might well refuse to consider the matters of error contended for. We think it well enough to say, however, that we have read the instructions complained of, and to our minds no error appears. In the motion for new trial misconduct on the part of the county attorney, and of the jury, was complained of. As to these, it is sufficient to say that the record makes no disclosure respecting any of the matters relied upon as misconduct. A further ground of the motion was that defendants were unable to have present an important witness, one Annie Faylor, who was at the time of the trial confined to her bed with illness. It does not appear that a postponement of the trial was asked on that account, nor does it appear what fact or state of facts it was expected to establish by the testimony of the witness. A further ground of the motion was newly discovered evidence. The nature of the evidence is set out in an affidavit attached to the motion. We need not herein set it out in detail. Our reading makes it clear that the evidence was purely cumulative, and hence did not furnish a ground for new trial.

On behalf of the defendant O'Brien, it is insisted that the sentence was excessive, and we are asked to make a reduction in the term imposed. We see no reason for doing so. If guilty--and the jury said he was--he was equally guilty with his codefendant, and...