State v. Wells

• Decision Date: 16 October 1883
• Citation: 17 N.W. 90,61 Iowa 629
• Parties: STATE v. WELLS ET AL
• Court: Iowa Supreme Court

17 N.W. 90

61 Iowa 629

STATE v. WELLS ET AL

Supreme Court of Iowa, Dubuque

October 16, 1883

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.

AFFIRMED.

Casey & Casey, for appellant.

Smith McPherson, Attorney-general, for the State.

OPINION

SEEVERS, J.

I.

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 defendant's 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 by the state the affidavits of sixty residents of the county 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 46, 48; State v Scott, 44 Iowa 93; State v. Dakin, 52 Iowa 395. 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 that 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 § 2749, which provides that 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 that the 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 that 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 a 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 continuance granted only where the court is satisfied that "substantial justice will thereby be more nearly obtained."

II. The indictment, in substance, charged that the murder was perpetrated by the administration of chloroform, a poison. The evidence tended to show that 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:

"10. In cases of homicide, malice may be legitimately inferred from the means used and the manner of its use; and if the killing is with a dangerous and deadly poison, unlawfully administered, and it is not shown to have been given with a good intention, the presumption will be that the killing was intentional and voluntary, and with malice aforethought.

"12. If the crime is perpetrated by means of poison, knowingly and feloniously administered, it will be murder in the first degree, and premeditation and deliberation will be presumed, and these elements of the crime of murder need not be proved; and it is the established law that to commit murder by means of poison is a deliberate act necessarily implying malice.

"15. If you shall find that chloroform is a dangerous and deadly poison, and that the defendants were confined in the state penitentiary * * * ; that to effect an escape from said penitentiary they administered to the said John Elder * * * chloroform in quantities sufficient to ordinarily produce death, and from the poisonous effects of which the said John Elder died, and you so find beyond a reasonable doubt, you should find the defendants guilty of the crime of murder in the first degree, but if you do not so find, acquit of this degree."

Counsel for the defendants insist that the foregoing instructions are erroneous, because, as they claim, under the statute, there may be a homicide caused by the administration of poison, and yet the perpetrator not necessarily be guilty of murder. The argument is that "the intention in giving the poison may not have been a good one; yet it does not follow that it was the intention to kill Elder; on the contrary, when we reach that point, we will demonstrate the fact, gathered from the evidence, that no such intention was contemplated." It is further insisted that, in...