State v. Woodard

• Citation: 84 Iowa 172,50 N.W. 885
• Parties: STATE v. WOODARD.
• Decision Date: 18 December 1891
• Court: Iowa Supreme Court

84 Iowa 172

50 N.W. 885

STATE

v.WOODARD.

Supreme Court of Iowa.

Dec. 18, 1891.

Appeal from district court, Decatur county; JOHN W. HARVEY, Judge.

Defendant was indicted and convicted for an assault with intent to commit murder. He now appeals to this court.McIntire Bros. & Jameson, for appellant.

John Y. Stone, Atty. Gen., and Thomas A. Cheshire, for the State.

BECK, C. J.

1. The defendant presented his petition in due form to the district court, asking for a change of venue of the cause to another county, which was supported by the affidavits of a large number of residents of the county, tending to show prejudice against defendant by the people thereof to such an extent that defendant cannot have a fair trial therein. A counter-showing, contradicting the affidavit of defendant by nearly an equal number of residents of the county, tends to establish that there is no prejudice in the county against defendant to their knowledge, and that in their belief he could obtain a fair trial therein. The application for the change of venue was addressed to the sound discretion of the court, and the decision thereon will not be disturbed, unless it be clearly shown that this discretion has been abused. Code, § 4374, and cases cited in notes by Miller and McClain. There is no showing justifying the conclusion that the discretion of the court was improperly exercised in refusing this application.

2. A witness, a surgeon, who examined the wound inflicted by defendant upon another, which constitutes the crime for which he was indicted, was asked and permitted to answer, over defendant's objection, this question: “What is the probability of the wound producing death?” He replied that the wound had cut the femoral artery and femoral vein, and was very dangerous, and would have produced death in a very few minutes, if the flow of blood had not been stopped very shortly. The character and locality of the wound would to some extent seem to indicate the intent of defendant in inflicting it, as the weapon used will in some degree disclose that intent. If the wound is in a vital part, and for that reason was dangerous, and would speedily produce death, it was proper to show these facts in order to enable the jury to determine the question of intent. The evidence was therefore rightly admitted.

3. A witness who described the fight between the defendant and the person who was stabbed was asked and permitted to answer this question: “Now, in this last racket, did you see defendant strike Gardner?” (the person who was stabbed.) The ground of objection to this question is that there was no proof that there was a second “racket,” using the word in the sense of a fight, quarrel, or contest. The evidence shows that Gardner, at the beginning of the difficulty, slapped with his hand defendant, who thereupon retired to another part of the room, pursued, as some witnesses testify, by Gardner. The conflict was there renewed, which is referred to in the question as the last racket. It is difficult to say from the evidence that there were two conflicts, but it is very plain that defe...