State v. Smith

• Citation: 219 Iowa 168,256 N.W. 651
• Decision Date: 16 October 1934
• Docket Number: No. 42398.,42398.
• Parties: STATE v. SMITH.
• Court: United States State Supreme Court of Iowa

219 Iowa 168

256 N.W. 651

STATE

v.SMITH.

No. 42398.

Supreme Court of Iowa.

Oct. 16, 1934.

Appeal from District Court, Davis County; C. F. Wennerstrum, Judge.

The appellant was tried and convicted in the district court of Davis county upon a county attorney's information charging him with the crime of receiving stolen goods. The defense was former jeopardy, and also that there was no evidence connecting the defendant with the crime charged other than that of accomplices. The trial court withdrew the plea of former jeopardy, and held that the persons who committed the larceny were not accomplices of the defendant in the commission of the crime of receiving stolen goods. The defendant appeals.

Affirmed.Verne J. Schlegel, of Bloomfield, and Jones & White, of Ottumwa, for appellant.

Edward L. O'Connor, Atty. Gen., Walter F. Maley, Asst. Atty. Gen., W. R. Fimmen, Co. Atty., of Bloomfield, and Hugh Guernsey, Co. Atty., of Centerville, for the State.

ANDERSON, Justice.

This is an appeal from a conviction and judgment on a county attorney's information charging the crime of receiving stolen goods. The information charged that Glenn Burns and Leo Thompson stole from one Dick Wilson, a farmer in Appanoose county, nine sacks of clover seed of the value of $100, and that the defendant, Lester Smith, received said stolen property from Burns and Thompson in Davis county knowing that the same had been stolen and did knowingly and willfully take and keep said property. Burns and Thompson had been convicted of larceny in Appanoose county and at the time of the instant trial were serving sentences in one of the state institutions. Both testify in the instant case that some time prior to the date of the larceny they had gone to the farm home of the defendant, Lester Smith, and negotiated with him for the sale to him of the clover seed which they intended to steal and agreed with him that they would deliver the clover seed to him and divide the proceeds with him. The record shows that on two or three trips to the Smith farm prior to the commission of the larceny, Thompson and Burns were accompanied by Russell Burns, a brother of Glenn Burns, but that he took no part either in the negotiations leading up to the larceny or in the larceny. The clover seed was stolen on the 29th day of July, 1933, between 9 and 10 o'clock in the evening, and taken to the farm home of the defendant, Smith. The testimony showing that, according to prior arrangements between the thieves and this defendant, the clover seed was to be placed in the defendant's granary in his barn, he having shown the thieves the location of such granary; that the defendant was not at home at the time the clover seed was delivered and deposited in his granary. The sheriff's of Appanoose and Davis counties being advised as to the larceny of the clover seed and the delivery of it to the defendant went to the home of the defendant and found the clover seed stored in the granary of the defendant. At the time the clover seed was so found, neither the defendant nor any member of his family were at home, but he was later found and arrested at the county fair in Bloomfield. The clover seed was identified by Wilson, the owner, who testified that the same had been stolen from him on or about the 29th day of July, 1933. There is ample evidence in the record to prove that the thieves were at the Smith farm home prior to the time of the larceny. A witness Orris Hopkins testified that he was at the defendant's home the latter part of July at a time when Glenn Burns and Leo Thompson drove into the Smith place. He did not know Thompson and Burns, but Smith, the defendant, called them by name. Russell Burns, a brother of Glenn, testified that he was with his brother and Thompson on some of the occasions when they visited the defendant's home prior to the larceny and heard some of the conversation in reference to the storing in the granary of the clover seed. At the time the defendant was arrested the sheriffs testified that the defendant asked them what he was arrested for, and that one of them told him, for the larceny of clover seed that was found in his granary, and the defendant said: “There must be some mistake. There is no clover seed in my granary, or on my place.” When asked by the sheriff how it happened that he did not know the clover seed was in the granary when there were several sacks of green corn in the granary between the door and the clover seed, the defendant then answered, “Wait a minute, I dumped two sacks of green corn in that granary this morning, is the only time I have had it open for weeks.” On the trial the defendant's version of this conversation was that he admitted that the clover seed was in his granary but that he told the sheriff he did not know that he had any stolen seed in his granary. The defendant further testified upon the trial, and his wife and her sister testified to the same thing, that on or about the 8th of August, Leo Thompson and Glenn Burns and one other boy came to his home with nine sacks of clover seed and wanted to sell the same, and that the defendant finally decided to buy it, and that Mrs. Smith, the wife of the defendant, went into the house and secured $30 and gave it to Glenn Burns; and the defendant further testified that he bought the seed from Glenn Burns on August 8th, and that it was stored in his granary from that date until the 14th day of August. The defendant, Smith, was subsequently informed against and tried in Appanoose county for the larceny from a building in the nighttime of the clover seed in question, and was acquitted; and in the trial of the present case he filed a special plea of former jeopardy on account of his prior trial and acquittal of the crime of larceny from a building in the nighttime.

The state conceded the facts as contained in the special plea of former jeopardy and moved to withdraw from the consideration of the jury the defendant's plea of former jeopardy for the reason that the crime for which he was tried in Appanoose county, and the one with which he was charged in Davis county, were two separate and distinct offenses and neither was included in the other, and that the issue of former jeopardy was purely a question of law for the determination of the court. The trial court determined that the two crimes were separate and distinct and withdrew the defendant's plea of former jeopardy.

The foregoing is a brief statement of the condition of the record when motions for a directed verdict were submitted and overruled, and the case submitted to the jury resulting in a verdict of guilty from which this appeal is prosecuted.

[1][2][3] I. The appellant prior to the trial of the instant case in Davis county filed a motion for a change of venue on the ground that prejudice existed against the defendant in that county, and that he could not obtain a fair trial therein. This motion was supported by the affidavit of one of the defendant's attorneys and by the defendant himself, and by three other residents of Davis county, all to the effect that in the opinion of the affiant the defendant could not obtain a fair and impartial trial in Davis county because of prejudice existing against him, and because of inflammatory and derogatory publications in reference to the instant case appearing in the local papers of the county. Such motion was resisted by the state, and the affidavits of many residents of the county from many different districts in the county were filed showing that in many instances the defendant was not even known in the neighborhood in which the various affiants lived, and that in many other instances there was even no knowledge of the pendency of the charge against the defendant, and that no prejudice existed against him in the county. The motion for a change of venue was overruled by the court, and this is claimed by the appellant as error and it is one of the principal errors argued upon this appeal.

Our statute provides that when an application or petition for a change of place of trial is filed as in this case by the defendant, the court, in the exercise of his sound discretion, must, when fully advised, decide the question according to the very right of it. Section 13818 (Code). This question has been before this court many times, and we have repeatedly held that the granting or refusal of the change rests exclusively in the exercise of the sound legal discretion of the trial court, and unless there is a manifest abuse of such discretion error will not be predicated upon a refusal. State v. LeGrange, 94 Iowa, 60, 62 N. W. 664;State v. Heacock, 106 Iowa, 191, 76 N. W. 654;State v. Blodgett, 143 Iowa, 578, 121 N. W. 685, 21 Ann. Cas. 231;State v. Williams, 197 Iowa, 813, 197 N. W. 991;State v. Gibson, 204 Iowa, 1306, 214 N. W. 743;State v. Hodges, 198 Iowa, 1208, 199 N. W. 297, 298.

In the last-cited case, State v. Hodges, the application for the change was supported by a stronger showing than in the instant case; but in the Hodges Case we said, speaking through Justice Evans: “It will be seen, therefore, that the question involved was one wholly of opinion. * * * There is nothing in this feature of the record that would justify us in finding any abuse of discretion on the part of the trial court. The recitals contained in the affidavits presented by the defendant are such as could be made without actual bad faith in any criminal prosecution in any county where the crime involved was of such a nature as to attract public attention.” And we there held that there was no error in overruling a motion for change of venue on the ground of public prejudice when the existence or nonexistence of such prejudice rested on a mere matter of opinion of diverse witnesses. Many other of our own cases might be cited as sustaining the ruling of the trial court in the instant case, but the matter has been before this court so often, and we have so thoroughly and repeatedly discussed and...