State v. Spurbeck

| Iowa | Dec 6, 1876

Day, J.

1. criminal oTvenue."80 I. The petition for a change of venue in a criminal case is addressed to the sound discretion of the court. Code, Sec. 4374. The record discloses nothing to show an abuse of this discretion.

2.-: nuisanee, plead II. The demurrer to the indictment is upon the ground that it charges more than one offense. The indictment is found under section 4091 of the Code. The 0;g?enge epargeq is nuisance. It is competent to allege the various acts which go to make up this offense. See State v. Dean & Nealy, ante, p. 648.

3. practice : diUgence?06' III. The defendants moved for a continuance, on the ground of the absence of Mathias Buckmaster, and they filed an affidavit showing that his testimony would be material. We think, however, that the affidavits do not show the employment of reasonable diligence to procure his testimony.

The affidavits show that Buckmaster, soon after the finding of the indictment, went to the Wisconsin pineries, and that his postoffice address was not learned for some time. But it does appear that defendants’ attorney ascertained the address of Buckmaster about the 20th of March, 1875; that he then wrote to Buckmaster, and requested him to furnish the name of a notary public, or of the clerk of the court; that lie waited until the 18th of April, almost one month, for a reply; that he then forwarded a notice to the district attorney, asking him to accept service, and that the notice was returned without acceptance; that he afterward accepted service, and a commission issued on the 29th of April.

We think the testimony of Buckmaster might have been obtained by the employment of reasonable diligence. The waiting nearly a month for Buckmaster to name a clerk or notary, was not such diligence. At least it was sufficient to justify the court in overruling the motion for a continuance.

4 _. evl_ dence. IY. The court, against the defendants’ objection, admitted evidence of the reputation of the house. But, afterward, the court withdrew all evidence of reputation from the consideration of the jury. The admitting of the evidence, therefore, does not constitute error for which the cause can be reversed.

Y. It is claimed that the evidence does not support the verdict. The evidence is not of a very full and satisfactory character. Still we are of opinion that it does not warrant our disturbing the verdict.

Affirmed.