State v. Rainsbarger

Decision Date10 March 1888
Citation37 N.W. 153,74 Iowa 196
PartiesSTATE v. RAINSBARGER.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from district court, Marshall county; D. D. MIRACLE, Judge.

Defendant, Frank Rainsbarger, was convicted for the murder of Enoch Johnson and sentenced to imprisonment for life in the penitentiary. He now appeals to this court.Brown & Carney and C. C. Cole, for appellant.

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

BECK, J.

1. The numerous objections to the rulings of the district court will be considered in the order of their discussion by counsel. While, perhaps, this order is not wholly in accord with the manner of presentation of the case which meets our preference, yet, as it is followed by counsel on both sides, it is more convenient to pursue it in our discussion of the case.

2. During the term at which defendant was tried, a motion for a continuance, on the ground of the illness of two of his counsel was overruled. The case had been pending for more than 18 months, and had been continued two or three times, once, at least, with the consent of the state. The venue of the case had also been changed. Prior to the motion, and at the same term, the time for the commencement of the trial was extended for nearly a month on the ground of the illness of defendant's counsel. More than two weeks before the time thus fixed for the trial, the attorney for the state, having information that an application for a continuance would be made, notified defendant in writing that the commencement of the trial at the time fixed would be insisted upon. The application for the continuance was made at least 10 days before the day set for the trial. It is shown that at the time the motion was made, defendant had other counsel in attendance upon the court. The counsel who were sick were not present. The sickness of defendant's counsel per se was not sufficient ground for the continuance, if, in the exercise of reasonable diligence, he could have been ready for trial. The district court was more familiar than we can be with all the facts and circumstances of the case tending to show the prior diligence of the defendant, his ability to prepare for trial after he was advised of the illness of his counsel, and whether his cause could be so presented by the counsel attending the court, and others whom he might employ, that he would obtain justice. In the exercise of sound discretion, based upon all facts within the knowledge of the judge, the court was required to rule on the application. There is nothing in the record before us authorizing the conclusion that this discretion was abused. Indeed, the trial vindicated the conclusion which must have been reached by the court below that defendant would suffer no prejudice by denying his application for the continuance, for it was conducted with great ability, and it is quite apparent that there could have been no failure of justice for want, on the part of counsel trying the case, of ability, zeal, and thorough familiarity with the facts of the case and the law applicable thereto. We conclude that no error or prejudice is shown which resulted from the overruling of the motion for the continuance. See, as an analagous case supporting our conclusion, State v. Stegner, 33 N. W. Rep. 340.

3. The attorney for the state filed an affidavit showing the facts of the service of the notice that he would urge the trial at the day fixed for it; that other counsel than those who were ill were in the case; and probably some other matters. Defendant's counsel now insist that it was error to permit this affidavit to be filed. They claim that no affidavits can be submitted in resistance to an application for a continuance, and that this court has so held. But the decisions are to the effect that the statement of facts which are expected to be proved by an absent witness cannot be contradicted by counter-affidavits. State v. Dakin, 52 Iowa 395, 3 N. W. Rep. 411;State v. Scott, 44 Iowa, 93. The obvious reason for the rule is based upon the provision of the statute to the effect that the state may avoid the continuance by admitting that the absent witness would testify as claimed in the affidavit for the continuance. At the trial the state may traverse the facts stated, and introduce evidence contradictory thereto, and if the state were authorized, upon the consideration of the motion, to contradict the statement of facts, it would, in effect, be the trial of an issue of fact to the court upon which, if fairly tried, the defendant should be permitted to introduce evidence, in support of his affidavit, which would involve delay and great inconvenience and unnecessary labor. But as to facts showing diligence and the like, the case is wholly different, and the same reasons do not apply thereto. This court has held that counter-affidavits, denying the existence of popular excitment shown as a cause for a continuance, may be received and considered. State v. Wells, 61 Iowa, 629, 17 N. W. Rep. 90. It thus appears that allegations of facts in an affidavit for a continuance other than those to which it is claimed an absent witness may testify, may be contradicted by counter-affidavits.

4. After the jury was impaneled, the defendant asked that they be placed in the care of the officers, and that they should not be permitted to separate. The ground of this request was that at a prior trial of one indicted for the same homicide a daily newspaper, published in the city where the court was held, had commented on the evidence in a manner prejudicial to defendant, and a repetition thereof was feared. The request was refused. This court has held under the statute now in force, applicable to the question, (Code, § 4434) that the court, in the exercise of its discretion, may, in a case of the character of the one before us, permit the jury to separate under proper direction and admonition. State v. Felter, 25 Iowa, 67. The record fails to show abuse of discretion by the district court or prejudice resulting to defendant from the refusal to grant his request. The court carefully, at proper times, admonished the jury not to read the newspaper accounts and discussion of the trial and to observe other directions intended to guard them from influences which might have the effect to bias their minds. It is not shown that the jury disregarded these admonitions, or that any prejudice did result, or could have resulted, to defendant from the action of the court in denying defendant's request.

5. The state was permitted to examine a witness whose name was not indorsed upon the indictment, as required by Code, § 4293, upon showing a notice to defendant as required by Code, § 4421. Counsel for defendant insist that the requirements of this section were not observed, for these reasons: (1) The notice shows that the witness resided in Kansas City, Kan.; and it appeared that he lived in Kansas City, Mo. (2) The notice shows that the state expected to prove by the witness that the sheriff had sent a telegraphic communication to defendant, requesting him to come to the sheriff, and that the defendant asked the witness his opinion as to what he supposed the sheriff wanted. The evidence showed that the deputy-sheriff had sent a communication by telephone. In other respects the evidence did not differ from the statements of the notice. It is insisted that on account of the differences pointed out the evidence was erroneously admitted. The purpose of the statute is to secure to the accused such a knowledge of the evidence, which will be given against him, as will enable him to make preparation to contradict or explain it, if either may be done. To this end the accused must be informed with sufficient certainty as to the witness who will testify against him, and the substance and effect of his evidence. The name of the witness and his place of residence should be given. But an omission to give his true place of residence cannot be reversible error, unless prejudicial. Under Code, § 4538, and frequent discussions of this court, errors which do not affect the substantial rights of defendant are not grounds for reversing the judgment. It is not made to appear that defendant was in any way misled or otherwise prejudiced by the error. So it is not shown that the statement in the notice differing from the evidence in showing that the deputy-sheriff had sent a communication by telephone instead of a message by telegraph sent by the sheriff wrought to defendant prejudice of any character or to any extent. If the state were required to produce evidence conforming in every important particular to the notice, the statute would defeat justice, when a non-compliance in unimportant matters would not prejudice...

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9 cases
  • State v. Peterson
    • United States
    • Iowa Supreme Court
    • June 26, 1974
    ...jury indictment or county attorney's information. We have refused to do so in State v. Bowers, supra, 17 Iowa 46 (1864); State v. Rainsbarger, 74 Iowa 196, 37 N.W. 153; State v. Harlan, 98 Iowa 458, 67 N.W. 381; State v. Harding, 204 Iowa 1135, 216 N.W. 642; State v. Thom, 236 Iowa 129, 17 ......
  • Sever v. Minneapolis & St. L. Ry. Co.
    • United States
    • Iowa Supreme Court
    • October 18, 1912
    ...Railroad Co., 122 Iowa, 231, 97 N. W. 1103;Bruggeman v. Railway Co., 147 Iowa, 191, 123 N. W. 1007, Ann. Cas. 1912B, 876;State v. Rainsbarger, 74 Iowa, 196, 37 N. W. 153. See, also, the following from other states: Ill. Cent. v. Smith, 208 Ill. 608, 70 N. E. 628;Hellyer v. People, 186 Ill. ......
  • Sever v. Minneapolis & St. Louis Ry. Co.
    • United States
    • Iowa Supreme Court
    • October 18, 1912
    ... ... state of ... South Dakota plaintiff claims to have been injured through ... the negligence of defendant's servants and agents in ... handling a mixed ... Iowa 111 at 116, 84 N.W. 975; Collins v. Railroad ... Co., 122 Iowa 231; Brueggeman v. Railway Co., ... 147 Iowa 187 at 191; State v. Rainsbarger, 74 Iowa ... 196, 37 N.W. 153. See also, the following from other states: ... Ill. Cent. R. R. v. Smith, 208 Ill. 608 (70 N.E ... 628); Hellyer ... ...
  • Flyzik v. Travelers Ins. Co., 29127.
    • United States
    • Washington Supreme Court
    • February 3, 1944
    ...Chicago City Ry. Co. v. Soszynski, 134 Ill.App. 149; Chicago, R.I. & P. R. Co. v. Sheldon, 6 Kan.App. 347, 51 P. 808; State v. Rainsbarger, 74 Iowa 196, 37 N.W. 153.' holding of this court was based upon five decisions of other courts. In People v. Hare, 57 Mich. 505, 24 N.W. 843, 846, it a......
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