40 Iowa 95 | Iowa | 1874
The court clearly erred either in refusing to grant a change of venue, or in sustaining the motion in arrest of judgment and for new trial, for the former ruling is sustainable only upon the theory that the action is criminal, and the latter upon the theory that it is civil. Miller v. Laraway, 31 Iowa, 538; Revision, Section 4855; Code, 4490. This proceeding is instituted under Sections 1544-1547 of the Code. We entertain no doubt that, under these Sections, the proceeding is to be treated as a criminal one. Section 1546 provides that the proceeding in the trial of such case may be the same, substantially, as in case of misdemeanor. Under this provision it is competent for the court to reject the testimony of the defendant. It will be conceded, we think, that the defendant should have the privileges -which pertain to a civil trial, or the protection which follows an acquittal in a criminal one. It could not have been the intention of the legislature to treat the proceeding as a criminal one, so far as to deny the defendant the right of testifying, and as a civil one, so far as to deny him the protection which an acquittal in a criminal action affords. The court erred in sustaining the motion in arrest of judgment, and for new trial.
REVERSED.
