123 Iowa 139 | Iowa | 1904
The evidence tended to show a fraudulent transaction by which defendant secured the loan of $150 from Mrs. Martha Arbuckle by alleged false and fraudulent representations as to his financial standing and his ownership of property. It appears that, pending negotiations for settlement of a civil suit involving the samé transaction, the criminal prosecution was postponed until the court was ready to adjourn for the term, and that then, on the failure of the defendant to carry out the terms of the settlement of the civil suit, the criminal prosecution was brought on for trial. On the morning of the day fixed for trial, defendant failed to appear; and the proceedings of the court were delayed until late in the afternoon, before the attendance of defendant could be secured. At this time the attorney who had represented defendant both in the civil suit and in the criminal prosecution asked leave to withdraw his appearance in the criminal ease on the ground that defendant had failed to carry out the settlement arranged for in the civil case. The court allowed the attorney to thus withdraw from the criminal case, and asked defendant whom he would have to defend him. Defendant designated an attorney then present, but this attorney refused to act. Thereupon the court appointed another attorney, who Had no knowledge of the case whatever, and who was not present.' The attorney thus appoirited was sent for, and, on his appearance, stated his lack of familiarity with the ease, and asked that the trial be postponed 'until the next day; but, at the suggestion of the court, the
The court admitted the testimony of various witnesses as to matters which were not relevant to tbe issue. For instance, tbe constable who arrested tbe defendant testified as to a statement made by him, without anything appearing to show that such statement could have been properly considered as an admission of guilt, and yet tbe statement was one calculated to prejudice tbe defendant in tbe eyes of tbe jury. Other witnesses were allowed to testify as to a mortgage of Eliza Barr to one Robinson, although it does not appear from tbe record that sucb mortgage bad any bearing on tbe question of defendant’s guilt. A witness who was examined for defendant was asked on cross-examination whether be bad been indicted with defendant for a conspiracy to obtain Mrs. Arbuclde’s property, and was required to answer as to having been indicted and arrested on that charge. A witness for tbe state was allowed to testify in rebuttal as to a conversation with a witness for the defendant in which tbe latter stated certain facts having a material bearing on tbe case, and it does not appear that this evidence was
We are constrained, also, to call attention to another incident of the trial, which, as we think, indicates that the case was so presented to the jury that they were likely to be misled to defendant’s prejudice. It appears that counsel for the prosecution referred to the alteration of the deed of Eliza Barr, which we have already mentioned, and charged that such alteration constituted forgery on the part of the defendant. There was no evidence whatever, so far as the record shows, that defendant was responsible for such alteration. It appears from the statement made by the court in ruling on a motion for a new trial that this matter was referred to, and the prejudicial nature of such reference is apparent. There was, it appears, no proper objection made to the argument, and no rulings asked which would serve as a basis for a proper exception; but the misconduct of counsel was such that, in our opinion, it could not have been cured by any ruling of the court, and we think that the misconduct may properly be said to have deprived defendant of a fair trial.
A motion to strike out appellant’s denial of appellee’s amended abstract is submitted with the case, with a stipulation that the correctness of appellee’s amended abstract may be determined from the original record of the district court, which has been duly certified. As we have determined the case on matters which appear Avithout contawersy from the abstracts, so far as they are not denied or called in question, we find it unnecessary to pass upon this motion.
The sentence must therefore be set aside, and a new trial is awarded. — Reversed.