19 Iowa 154 | Iowa | 1865
The indictment was found in Buchanan county; a change of venue was granted to Delaware, and afterwards the present defendant, obtained a change of venue to Bremer county, in the 12th judicial district, where he was tried and convicted at the May Term, 1865, of the District Court, and sentenced to the penitentiary for six years.
The objections made to the regularity of this conviction, we shall proceed to consider as briefly as possible, and as near as may be in the order presented by counsel.
I. The objection urged to the manner of selecting the grand jury, is not presented by the record, in such a manner as to enable us to judge what action was had thereon in the court below. Waiving this defect, however, there seems to be no other objections to the proceedings in this respect, than were considered in the case of Knight (ante), and it is sufficient to say that we adhere to the ruling there made.
II. The defendant was indicted in September, 1864, and was then in custody. On the 9th of May he filed his affidavit and motion for a continuance, which was overruled. On the same day he filed a “ further and amended affidavit.” This application was also overruled, and of this action the defendant in the second place complains.
These affidavits and the papers connected therewith cover some eighteen pages of the record. As every question of this character turns, for the most part, upon the peculiar circumstances of each case, we shall content ourselves with stating the rules which justify our affirmance of the ruling of the court below, without setting out the matter contained in these affidavits.
Applying these rules, we remark, that while we think the court below might .reasonably and properly have granted this continuance, and while this disposition of the case, in view of all the circumstances, would, treating it as an original question, have.been quite, as satisfactory to our minds, yet we do not think there was such abuse of discretion as to justify our interference. The application was based upon the absence of witnesses, all but one to be used to impeach the witnesses on the part of the State. There is a statement of a belief simply, that the testimony can be procured, but no facts showing reasonable grounds. Then, as to the question of diligence, the facts were more peculiarly in the knowledge of the court below,-than ours, and upon the whole case made, looking at the entire record, while the question is by no means free from-doubt, we cannot say there was error in overruling the application.
The court could properly exclude the corroborating testimony until that of Pollard was impeached, or in some
1. This instruction was asked: “ Any threats made by the defendant, since the commencement of this prosecution against the parties engaged therein, such as threatening to have satisfaction or revenge on such parties, is not evidence that can be considered by the jury in determining the guilt or innocence of defendant.” This was given, the court adding, “ except as links in a chain of testimony to show persistency in the crime charged.” It is difficult to perceive the necessity of this modification or addition, and yet we cannot say that it was error. The instruction itself was not correct for all cases. We can readily see that threats thus made, might seem to indicate a mind equal to the commission of the crime charged or any other. While an innocent man might use such threats, yet they are more consistent with a wicked disposition, than a life
¥e have thus noticed all the errors relied upon for a reversal, and are brought to the conclusion that the judgment must be
. Affirmed.