State v. Moats

108 Iowa 13 | Iowa | 1899

Ladd, J. — I.

1 The particular offense charged is that the defendant and one J. A. Lyons induced Ole Shelstrand to sign a deed conveying his eighty-acre farm to Anna C. Lyons, on the representation that the instrument was an application for insurance on his house. Before this, Lyons had arranged with Tracy for a loan of one thousand two hundred dollars, and soon thereafter obtained it by executing a mortgage on the land. Out of this a prior mortgage of five hundred and fifty dollars and taxes were paid. Lyons testified that he gave Shelstrand the balance, and took his receipt; that he bought the land for two thousand three hundred dollars, and the deed, and the two notes for one thousand one hundred and fifty dollars, and a mortgage on the land to Shelstrand, securing the remainder of the purchase price, were drawn and signed at the latter’s house; that Moats was to be paid one hundred dollars out of certain accounts for finding a buyer, and to hold the papers until tbe loan, was negotiated. On tbe other band, Shel-strand testified that, when at bis borne, Moats, who- came with Lyons, requested him to sign an insurance paper, afterwards to be filled out, which be did; that be did not sell tbe land or sign a deed; that be never.received any money from Lyons or Moats; and that, though be wrote bis name on a piece of white paper at another time, when both were at bis place, be did not sign tbe receipt. Tbe evidence shows that Shel-strand lived alone, was very eccentric, not of strong mind, with little or no furniture in bis bouse, in the habit of going to bis work backward or sidewise, of standing or sitting in one position an unusually long time, and possessed of other peculiarities, but that be understood business fairly well, could work, was not of defective memory; and be does not appear to have been unreliable. No objection was made to bis competency, and tbe record discloses no sufficient reason for doing so. He is somewhat corroborated by tbe undisputed facts of tbe transaction, tending strongly to show that advantage was taken of bis weakness, rather than that be, through weakness, fabricated the story. True, evidence of some of bis statements tends to bis discredit. Only tbe controverted inquiry concerning tbe loan is inconsistent with bis testimony, as tbe other statements may have been made after be bad learned of tbe existence of a deed, and tbe conclusion might well be reached that it in fact was never made. That tbe defendant and Lyons attempted to' take an unconscionable advantage of him is not doubted; and in view of the circumstances that they went out to buy tbe farm, carrying with them tbe deed, and everything ready to close tbe bargain, that Moats retained all tbe papers, that Lyons negotiated the loan before tbe purchase, that the mortgage back to Skelstrand was not recorded or delivered to him until tbe defendant was suspected of tbe fraud, and that Lyons, a stranger from Carroll county, paid out nothing on tbe land, we think- tbe jury may well have accepted tbe testimony of SJielstrand, gnd found t|ie defendant guilty as charged.

2 II. The trial court did not abuse its discretion in denying the application for a change or venue. The transaction occurred in one corner of the county, and the affidavits satisfactorily show that the prejudice, if any existed, was confined to that part. It does not appear to have been general, or such as to have precluded a fair and impartial trial. State v. Foster, 91 Iowa, 168; State v. Read, 49 Iowa, 85; State v. Perigo, 70 Iowa, 657.

3 4 III. The motion to- strike out the evidence of certain witnesses, to the effect that Moats was seen near Shelstrand’s house on tire eleventh of August, with Lyons, was rightly overruled. No objection had been made to its introduction, and, the ruling might well rest on the ground that a party may not permit evidence to be received without objection, and thereafter, in the absence of any showing, have it stricken from the record. State v. Marshall, 105 Iowa, 44. But it tended to rebut the testimony of Lyons that he drove to the house alone in Moat’s surrey on that day, and procured the receipt, and to support the evidence rending to show the receipt was written by Moats. Exception was also taken to evidence concerning Shelstrand’s mental condition subsequent to the transaction. But the witnesses had stated that they had known him prior thereto', and such condition had continued unchanged up to the time of the trial. As he was a witness, this was calculated to aid the jury in better understanding his strength of mind at the time the deed was signed, and in determining what credit to give to his story. It was admissible.

5 IV. It is urged as a ground for a new trial that one of the jurors was biased, and entertained an unqualified opinion of defendant’s guilt, which he concealed on the voir dire examination. It does not appear, however, that this, if true, was unknown to the defendant’s attorneys, and for this reason we cannot inquire into the merits of the claim. State v. Bassamus, 108 Iowa, 10. —Affirmed.