State v. Williams
| Citation | 197 N.W. 991,197 Iowa 813 |
| Decision Date | 01 April 1924 |
| Docket Number | 35768 |
| Parties | STATE OF IOWA, Appellee, v. JOE WILLIAMS, Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--LESTER L. THOMPSON, Judge.
THE defendant was indicted for murder in the first degree committed by the killing of Sara Barbara Thorsdale. Upon a trial, he was found guilty of murder in the second degree. From a judgment of imprisonment in the state penitentiary for life, he appeals.
Affirmed.
Charles P. Howard and William E. Taylor, for appellant.
Ben J Gibson, Attorney-general, Vernon R. Seeburger, County Attorney, and Russell Jordan, Assistant County Attorney, for appellee.
This is the second appeal in this case. The first opinion will be found in 195 Iowa 785x, where the facts of the brutal and revolting crime with which the defendant is charged are fully set out. There is no occasion to again refer to them here in detail. It is only necessary to consider at this time the errors assigned as a ground for reversal.
Upon the last trial, the defendant was found guilty of murder in the second degree. It is urged that the defendant should have been found guilty of murder in the first degree, or acquitted. We heartily agree with the proposition, but it does not follow that his conviction of the included offense cannot stand. The evidence was, as to the principal facts, substantially the same as on the first trial, and as set out at length in the former opinion. It was amply sufficient to sustain a conviction of murder in the first degree. The defendant cannot complain if the jury dealt too leniently with him. State v. Barkley, 129 Iowa 484, 105 N.W. 506; State v. Shepherd, 129 Iowa 705, 106 N.W. 190; State v. Haugh, 156 Iowa 639, 137 N.W. 917; State v. Dimmitt, 184 Iowa 870, 169 N.W. 137.
Error is assigned on the overruling of defendant's motion for a change of venue. Two motions were presented: one asking a change of place of trial to another county, on the ground that the defendant could not obtain a fair trial in the county where the indictment was returned, on account of the prejudice of the people of the county against him, and the other asking a change of trial to another judge, on account of the bias and prejudice of the judge before whom the case was about to be tried.
As to the first motion, it is stipulated in this court that about 30 affidavits were filed in support of the motion, and about 31 in resistance. The affidavits, aside from that of the defendant, are not in the record. The granting of a change of venue rests in the sound discretion of the court, and, unless it is found that the discretion was improperly exercised or abused, its action will not be interfered with, even upon conflicting testimony. State v. Foster, 91 Iowa 164, 59 N.W. 8; State v. Brown, 130 Iowa 57, 106 N.W. 379; State v. Hassan, 149 Iowa 518, 128 N.W. 960; State v. Icenbice, 126 Iowa 16, 101 N.W. 273; State v. Blodgett, 143 Iowa 578, 121 N.W. 685. In the absence of the evidence passed upon by the court below in denying the motion, it is manifest that no error is shown.
The motion based upon the allegation of prejudice on the part of the trial judge did not entitle the defendant to the change, as a matter of right. The judge may consult his own feelings, as well as the showing made, and grant or deny the change, as he may think the right demands, in the exercise of careful discretion. State v. Foley, 65 Iowa 51, 21 N.W. 162. It is the duty of the judge to grant or deny the change as the fact of prejudice appears to him, and this court will interfere only where he has abused the discretion vested in him. State v. Billings, 77 Iowa 417, 42 N.W. 456. Prejudice is not shown to exist on the part of the judge merely because he has formed an opinion of the guilt of the defendant, from having presided and heard the evidence at a former trial. The prejudice contemplated is not merely a belief as to the guilt or innocence of the defendant, but the presence of such a state of feeling as will incline the judge against the defendant in his rulings and instructions on the trial. State v. La Grange, 94 Iowa 60, 62 N.W. 664. The trial judge, in passing on the motion, said that he heard the case under an assignment made by another judge, and was conscious of no bias or prejudice against the defendant. No abuse of discretion is shown.
Error is assigned on the overruling of challenges for cause to certain jurors.
In one instance, the juror said he had read some of the case and discussed it some, and had formed "somewhat of an opinion," that it would require some evidence on the part of the defendant to remove; that he had not talked with anybody who claimed to know about the case; that he thought he could give the defendant a fair trial; that he would be willing to be tried by a man feeling as he did about the case; that he would be guided by the evidence and the instructions of the court, and nothing else; that there was nothing in his mind that would prevent him from doing that. Another juror said that, from what he had read and heard about the case, he had formed some opinion, that it would require some evidence to remove; that he could lay that aside, and try the case upon the evidence and the law as given by the court, and nothing else; that his opinion was not unqualified, and would not influence him in any way in the trial of the case. There was no error in overruling challenges to these jurors. State v. Field, 89 Iowa 34, 56 N.W. 276; State v. Foster, supra; State v. Hassan, supra.
It is contended that there was prejudicial misconduct on the part of an attorney for the State in suggesting to the court, in the presence of the jury, that the witness Harriett Martin should be arrested, and on the part of the court in ordering the sheriff, in the presence of the jury, to place the witness under arrest. The record discloses that the witness had been cross-examined at considerable length concerning her testimony on former trials, and had admitted, in some instances, that her testimony just given differed from that formerly given by her. Her answers were frequently evasive and not responsive. At the close of her examination, one of the attorneys for the State said:
"If the court please, this witness, as you have heard her testimony here, I ask the court to take such action as is proper and necessary under the circumstances."
The record, as made by the official reporter, does not show that any action was taken on the request, or that anything further occurred in that connection. In support of a motion for a new trial, defendant filed affidavits that, after purporting to give the request of counsel, though in materially different language from that quoted above, recite as follows:
"That Sheriff Findley was in court, near the jury box, at the time, and immediately approached Judge Thompson, who seemed to have motioned to him from the bench; and after a brief conversation in a low tone of voice, the sheriff came around in front of the jury, as the witness was making her way from the stand, and took her by the arm and turned her around, and, still keeping his hold on her arm, led her from the court room, in the presence of the jury and the court."
It is not shown that the court directed that the witness be arrested, or that she was in fact arrested. If it be conceded that such an inference might be drawn from this transaction, is it the only reasonable inference that can be so drawn? Error is not to be presumed. It must appear upon the record. If it should be conceded that, when counsel requested the court to take such action as was necessary and proper under the circumstances, he was asking that she be arrested for perjury,--and this must be but an inference, for he did not in direct terms make any such request,--that, while untimely and improper, standing alone, would not require a reversal. State v. Pilkington, 92 Iowa 92, 60 N.W. 502; People v. Duncan, 261 Ill. 339 (103 N.E. 1043).
The witness is described by counsel for appellant as "an old colored woman, approximately seventy years of age, very illiterate, and easily excited." She had been subjected to a vigorous and lengthy cross-examination, relating largely to her testimony on former trials; she had repeatedly contradicted herself, had been several times admonished by the court to answer the questions put to her, and was apparently much confused. These circumstances are mentioned, not as affording any excuse for her arrest in the presence of the jury, but as indicating that the inference that she was so arrested is not the only reasonable one to be drawn from the facts that the court spoke to the sheriff and the latter led her from the room. In the absence of any showing whatever that the court did in fact so direct, or that she was ever actually arrested or taken into custody as an offender, we do not think the circumstances are such as to require us to so find. In connection with the indefinite request of counsel, a situation was presented that was susceptible, no doubt, of that construction, and one that, for that reason, should not have been permitted to arise, but not one, we think, from which it must be presumed that prejudice resulted.
The defendant, when on the witness stand, was asked if he had ever been convicted of a felony, and said that he had. When asked how many times, he said:
Following these answers, he was asked if he had not been convicted at particular places, and of what offenses. Over objection, he was required to answer. He was again asked how many times he had been convicted,...
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