The State v. Dakin

• Decision Date: 03 December 1879
• Citation: 3 N.W. 411,52 Iowa 395
• Parties: THE STATE v. DAKIN
• Court: Iowa Supreme Court

3 N.W. 411

52 Iowa 395

THE STATE v. DAKIN

Supreme Court of Iowa, Des Moines

December 3, 1879

Appeal from Marshall District Court.

THE defendant was indicted, tried, convicted, and sentenced to the penitentiary for life, for the murder of one John K Stough. He appeals to this court for a reversal of the judgment against him.

REVERSED.

James Allison and Henderson & Merriman, for appellant.

J. F McJunkin, Attorney General, for the State.

OPINION

ROTHROCK, J.

The indictment was found at the April term, 1878, of the Marshall District Court. The defendant was arraigned, pleaded not guilty, and by agreement the cause was continued to the next term, which occurred in October, 1878. The alleged crime was committed on the 27th day of March, 1878. At the October term the defendant filed a motion for a change of the place of trial, grounded upon the alleged prejudice of the inhabitants of Marshall county against him. The motion also alleged that the inhabitants of the county of Story were so prejudiced against him that he could not have a fair trial in that county. The requisite number of affidavits were filed in support of the motion. There were counter affidavits filed upon the part of the State. On the 26th day of October the motion was submitted to the court, and was overruled.

On the 28th day of October the defendant filed a motion for continuance, and in support thereof he filed therewith his affidavit in these words:

"I John N. Dakin, being sworn, say that I am defendant; that I cannot safely proceed to trial at the present term by reason of the absence of material witnesses; that the names of said witnesses are Joseph Dakin, Harriet Dakin, Edward Dakin and Andrew Dakin; that their present whereabouts are unknown to me; that they resided until very recently in Liberty township, Marshall county, Iowa and had resided in said township nearly two years, and in said county nearly twenty years; that said Harriet Dakin is wife of said Joseph Dakin, and said Edward and Andrew are their sons, and residing all in one family; that they removed from said Liberty township on or about the 14th day of October, 1878, with the intention, as I am informed and believe, to go to Jewell county, Kan.; that their intention to so remove before the present term of this court was not known to me; that I did not learn or know or have any information of their departure or intention to depart before the present term of this court until the morning of Saturday, Oct. 26, 1878, when I first learned they had gone; that I saw and conversed for a moment with said Joseph a short time before he went away, in the presence of several parties, at the door of the jail in this county, through the wicket; that I had opportunity to do no more than barely speak to him, and told him I would want him as a witness on the trial of the case; he replied that the case would not be tried here and that he would not be needed at the next term of this court: that it was then my intention, and I believe he knew of it, to apply for a change of venue; that I didn't then know whether my trial would come at this term of the court, and didn't know or expect he intended to leave here immediately and before this court would convene; that I didn't have said witness subpoenaed because I didn't then know whether said cause would be tried at this term of court or when it would be tried, and because I supposed that as they resided in the county I could procure their attendance upon a few hours notice, and because I expected my application for a change of venue would be granted; that I was surprised my application for said change of venue was refused by the court, and that my trial would come on this term, and because of all said matters I didn't have subpoenas issued for said witnesses.

"That I expect to prove by said witnesses, Edward and Andrew, the following facts: On the evening of the alleged murder of John K. Stough they were at my barn looking for a horse that had formerly been owned by me, and which they expected to find at my barn, and that on their return I accompanied them together to their father's house, a distance of about five miles from my residence, and from the place where the body of John K. Stough was found the next morning; that in company with them I started on horseback--all on horseback--from my barn early in the evening, at or before eight o'clock; that we went out directly to their father's, Joseph Dakin's, house; that I remained there a few minutes for the purpose of seeing if I could purchase a horse from Joseph, and between eight or nine o'clock--nine probably--near nine, I left his house; that when they came to my barn that I was there at the barn and was preparing to go to Joseph Dakin's, getting my horse ready for that purpose, and that my wife was there with me at the time; that I expect to prove said facts by each of said witnesses and do not know of any other witness or witnesses by whom I can prove the same facts, except that I can prove by my wife that I was at the barn when they came, and by Joseph Dakin and his wife that I was at their house.

"That I expect to prove by Joseph Dakin that between the hours of eight and nine o'clock of the evening of the night on which John K. Stough was killed, I was...