State v. Wells
| Decision Date | 16 October 1883 |
| Citation | 61 Iowa 629,17 N.W. 90 |
| Parties | STATE OF IOWA v. WELLS AND OTHERS. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Lee district court.
Indictment for murder. Wells and Cook were found guilty of murder in the first degree, and Fitzgerald in the second degree. The defendants appeal.Casey & Casey, for appellants.
Smith McPherson, Atty. Gen., for the State.
1. The defendants applied for a continuance on the ground of excitement and prejudice existing against them in the county where the indictment was pending, which would prevent them from having a fair trial. The application was based on affidavits of the defendants, stating at length the existence of the excitement and prejudice, and the facts upon which their belief was based. These affidavits were supported by the affidavits of five citizens of the county, including defendants' attorneys. Objections were filed to the continuance, but the same were overruled, and “thereupon, and on its own motion, and against the objections of the defendants' counsel, the court allowed the attorneys for the state to file counter-affidavits as to the condition of public sentiment, excitement, and prejudice, if any, against the defendants.” There was filed the affidavit of 60 residents of the county, by the state, contradictory to those filed by the defendants. A motion to strike the counter-affidavits from the files was overruled. When a motion for a continuance is filed, supported by an affidavit of the party, on the ground of the absence of a material witness, such affidavit is not traversable, but is presumed to be true. State v. Bowers, 17 Iowa, 48;State v. Scott, 44 Iowa, 93;State v. Dakin, 52 Iowa, 395; [S. C. 3 N. W. REP. 411.]
In such case the statute declares what must be stated in the affidavit, and this done the continuance follows, as, of course, if the court is satisfied the statute has been complied with. Code, § 2750. The application before us is not based on the section of the Code referred to, but upon section 2749, which provides a continuance may be granted “for any cause which satisfies the court that substantial justice will thereby be more nearly obtained.” Under this section there is a judicial discretion reposed in the court which, when exercised, will not be reversed unless such discretion has been abused. We are not aware that it has ever been held that counter-affidavits could not be filed when an application for a continuance has been made, which is addressed to the discretion of the court, to the end that “justice will thereby be more nearly obtained.” The statute does not require an affidavit to be filed in support of the motion, and in what way the court is to be informed that justice will be more nearly obtained by granting the continuance is left to the discretion of the court. We are not required to determine whether counter-affidavits can be filed in every case where the application is addressed to the discretion of the court, but only whether this can be done under the circumstances in the case before us. When there is excitement and prejudice against a defendant in a criminal case, in a county where the indictment is pending, he may obtain a change of venue to some other county. In such case the existence of the prejudice must be verified by three disinterested residents of the county, in addition to the defendant, and the court may receive additional “testimony by affidavits only, either on the part of the defendant or the state.” Code, §§ 4369, 4370, 4372.
It will be seen this statute authorizes counter-affidavits to be filed by the state. We think the same rule should apply when a continuance is asked, for the same reason. We have examined the affidavits and are not prepared to say the court abused its discretion in overruling the motion for continuance. When a crime is alleged to have been committed which excites public attention, there will always be some excitement or prejudice, possibly, in relation thereto. That is as to the crime. There exists in all peaceable communities a prejudice against crime. To an extent this extends to the person charged with the commission of the crime. But there is not, usually, a prejudice against him as an individual, but only because of the crime. It is impossible, we apprehend, to obtain an entirely indifferent jury. All that can be done is to approximate thereto as nearly as can be done, having due regard to the prompt administration of justice. We are impressed by the affidavits before us that the defendants would receive as fair and impartial trial at the term they were tried as at any subsequent term. The fair trial contemplated means such a trial both for the state and the defendants. The whole ground should be looked over, and the continuance granted only when the court is satisfied that “substantial justice will thereby be more nearly obtained.”
2. The indictment, in substance, charged that the murder was perpetrated by the administration of chloroform--a poison. The evidence tended to show the defendants were confined in the penitentiary, and that they administered chloroform to the deceased, one of the guards, and then made their escape. They were recaptured in a few days thereafter. The court gave the jury the following instructions:
Counsel for the defendants insist the foregoing instructions are erroneous, because, as they claim under the...
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