10 Iowa 506 | Iowa | 1860
I. It is submitted by tbe appellant that tbe court erred in refusing to sustain tbe challenge of defendant to tbe panel of the grand jury. Upon tbe 7th day of November, 1859, tbe grand jury for tbe county of Dubuque ivas regularly empanneled for tbe term of tbe District Court commencing on that day. Upon the 9th day of tbe same month, the murder of Woods, with which defendant is charged, iras
The defendant having no further challenges to make to the individual jurors, then objected to the action of the court in filling the panel of the grand jury, for the reason that on the first day of the term of said court the grand jury -was regularly empanneled, charged and sworn as the grand jury of the state of Iowa to iñquiré of offences committed within said county of Dubuque, and that any change made in the organization of said grand jury after it had been regularly empanneled, charged and sworn on the first day of the term, was contrary to law; and that the grand jury thus reorganized and constituted was not a legal grand jury for that term, and authorized to inquire into any offences committed within said county. This objection to the panel was overruled by the court. Section 2882 of the Code provides that “a defendant held to answer for a public offence may challenge the panel of the grand jury or any individual juror.” Section 2883 provides “ that a challenge to the panel can be interposed only for the reason that they were not appointed, drawn or summoned as prescribed by law.” The defendant was not held to answer for a public offence when the grand jury for the term was organized, so that if he was allowed
II. The court did not err in refusing the application of defendant for a continuance.' It was admitted by the State that if the witnesses whose names were mentioned in the motion for a continuance were present that the defendant could prove by them his previous good character. This being admitted, the rights of defendant were not prejudiced by their absence.
III. The State introduced one James McDonald, for the purpose of proving the declaration of the deceased, made at the house of witness, two squares and a half from where the fatal blows were given, and from five to ten minutes thereafter, as part of the res gestee, to the introduction of which the defendant objected, but such evidence was admitted by the court. From the bill of exceptions it appears “ TJ ere was other testimony adduced, tending to show the propriety of the admission of said declarations, not stated in this bill.” In order that this court should properly determine whether such evidence wa3 admissible or not, the whole of the testimony upon which the introduction of such declarations was based should be before this court.
IV. An application was by the defendant for a chango of venue from the 9th Judicial District, based upon the supposed prejudice of the presiding judge against the defendant. If the facts stated by the defendant in his application for such change were true, the defendant certainly had just grounds for believing that he could not receive a fair and impartial trial. If the declarations had been made by the court, in presence of the jurors and bystanders in the court room, as stated in the appellant’s application, we
Y. An application was made by the defendant for a change of venue from the county of Dubuque, based upon the excitement and prejudice of the people against defendant. This application was properly made and sworn to by the defendant and was supported by the affidavit of throe citizens of said county, each of whom swore positively that the excitement and prejudice of the people in Dubuque county, was so great against defendaxrt that he could not receive a fair and impartial trial, and each swearing that they are disinterested in the determination of this cause. The provisions of section one, chapter 227, of the Acts of 1857, were substantially complied with, and it does not appear that there were any counter affidavits filed or any contradictory testimony introduced. Two of the persons making such affidavits appear to have been acting under appointment by the court as counsel for the defendant. We cannot conceive that because they were acting as counsel for defendant, that they could have such a direct or legal interest as would in in any manner impair the correctness of their statements, especially when made under the sanctity of an oath. As attorneys, we are bound to suppose they had well examined the correctness of the statements made by them, and felt impelled by a sense of right and justice to their client to make such affidavits, and we give additional strength to these affidavits, because they were made by attorneys, entitled to the confidence of the court, or they certainly never would have been appointed to protect the legal rights of a person whose life depended upon their ability and integrity, as attorneys.
It is true that an application for a change of venue is addressed to the sound discretion of the court, but when made
Judgment reversed, and cause remanded for further proceedings not inconsistent with this opinion.