State v. Wood, 17 Iowa 18

State v. Wood

17 Iowa 18 | Iowa | 1864

Cole, J.

1. Indictment: averment:time. The defendant by his counsel filed a motion to quash the indictment, and also a demurrer thereto, assigning together some eighteen grounds or causes therefor, many of which are based upon assumed facts which do not appear in the transcript, and many others upon effete technicalities of the law. This is so apparent, that the defendant’s counsel, who have filed an elaborate argument in the case, pass over in silence all the grounds except the sixth and seventh points in the demurrer. These two points are concisely stated in appellant’s argument to be, “that the indictment does not sufficiently *20charge that tbe defendant knew at the time be was testifying as a witness that tbe matters be testified to were false.”

Tbe averment in tbe indictment is, “and whereas in truth and in fact, tbe said defendant, Albert F. Wood, did know that tbe said Wm. H. Blackman,” kept a saloon, &c., “and was selling intoxicating liquors more or less everyday, or nearly every day,” &c. Tbe defendant was indicted for an alleged perjury committed in testifying as a witness in a case of tbe State of Iowa, against one Wm. H. Black-man, for selling intoxicating liquors in a saloon in Mar-shalltown, contrary to law. It is claimed that tbe indictment should contain the averment “ that tbe witness knew tbe statement to be false at tbe time be testified to it.” A fair and natural construction of the language of tbe indictment shows such averment in effect. It states that at a certain time tbe defendant testified to certain matters, whereas tbe defendant “did know” they were false. The time at which be “did know” they were false, under a fair and natural construction, could be no other than the, time at which be testified to them.

2. criminal law : perjury: etc. II. It is next claimed that tbe evidence did not support the verdict, and this mainly on tbe ground that tbe , _ . . two witnesses who gaye evidence as to the previous testimony of tbe'defendant upon which tbe perjury was assigned, did not agree as to what that testimony was, and tbe law requires that to be proved by two witnesses. We remark that tbe two witnesses do substantially concur; but, if it was as claimed by defendant’s counsel, that only one of them states the testimony substantially as laid in tbe indictment, that would be sufficient. Tbe law does not require two witnesses to establish the giving of the testimony upon which tbe perjury is assigned, it only requires tbe two witnesses to prove its falsity. 2 Wharton’s Am. Cr. Law, § 2279; Commonwealth v. Pollard, 12 Metc., 225.

*213. - Presumptions of presence. *20III. It is further assigned, as error, that tbe record does *21not sbow that tbe defendant was present at tbe trial, or at tbe rendition of tbe verdict. Sucb presence is required by tbe Revision, § 4706, and, §4826. Tbe record does sbow, that on tbe 4tb day of April, 1864, tbe cause coming on for bearing, tbe defendant was called, and failing to appear, a default was entered against bim and bis sureties on bis bail bond. That, on tbe 5th day of April, tbe defendant appearing in open court, tbe default was set aside and a jury trial bad, and verdict rendered on tbe 6th, that, on tbe 7th, a motion for a new trial was made and overruled, and on tbe 9th, “ tbe defendant being in open court, was called within tbe bar ” and sentenced. Being thus shown to be present at tbe commencement and conclusion of bis trial, this court will presume tbe defendant present all the time, unless tbe contrary is shown. Harriman v. The State, 2 G. Greene, 270. In other words, tbe error, if any was committed, must be shown affirmatively by tbe party complaining of it.

4. — Error must appear affirmatively. Again, it does not appear, even if tbe verdict was rendered in defendant’s absence, that be was prejudiced thereby, nor is there any sucb claim made, or pre- , , . . _ . . ' % , tense set up m this court, and it is well settled . _ _ _ that error must not only be shown affirmatively, but it must be shown to have operated to tbe prejudice of tbe party complaining of it. Sucb is tbe rule in civil actions, and it is made alike applicable to criminal proceedings by tbe Revision, § 5111. “Neither a departure from tbe form or mode described by this Code, in respect to any pleadings or other proceedings, nor an error or mistake therein renders it invalid, unless it has actually prejudiced tbe defendant, or tends to bis prejudice in respect to a substantial right.”

5_Sentence. IY. Tbe verdict of tbe jury was returned into court on tbe 6th day of April, 1864, and tbe defendant was finally sentenced on Saturday afternoon, tbe 9th *22day of April. This is assigned as error. The Revision, § 4862, provides that “ the time appointed for pronouncing judgment must be at least three clear days after the verdict is recorded, if the court remains in session so long, or if not, as remote a time as can reasonably be allowed; but in no case can the judgment be pronounced in less than six hours after the verdict is recorded.” The record in this case is entirely silent as to when the court adjourned, nor have we any means of knowing when it did adjourn.' It was said by BALDWIN, J., in delivering the opinion of this court in The State of Iowa v. Marvin, 12 Iowa, 499, that “ dear days as here used, are days exclusive of the day the verdict was rendered, and the day upon which judgment should be pronounced. In the absence of any showing to the contrary, we are to presume that the court deferred its judgment to as remote a period as it reasonably could.” The object of this provision of the law, is evidently to give the defendant ample time to prepare his application for a new trial. The defendant does not even claim that he was in any manner prejudiced by this action of the court; on the contrary, it appears that his motion for a new trial was made and passed upon by the court.”

That case is analogous to, and decisive of the same point made in this:

6. — Presumptions: sentence, Y. It is provided by Revision, § 4870, that “when the defendant appears for judgment, he shall be informed by the court or by the clerk under its direction, of ^ . 7 the nature of the indictment, and of his plea, and the verdict, if any, thereon, and must be asked whether he have any legal cause to show why judgment should not be pronounced against him.” The defendant now insists in this court that this was not done, and he relies upon the silence of the record to show that it was not done. This statute is but simply declarative of the common law, and of the practice in this State for years prior to its passage, yet *23tbe records of but few, if any cases, show affirmatively that it was done, or tbat tbe failure to sbow it was assigned as error. There is no law requiring tbe court to make its action, in tbat particular, of record, although it might very properly be so done, and no presumption of its omission can be made from tbe failure to enter it of record. Tbe presumption is tbat tbe court has done its duty, and if there was error it would doubtless be cured by Revision, § 5111, 'supra.

"We have thus passed at some length upon each assigned error, which the defendants have deemed of sufficient importance for themselves to mention or discuss, and we find no error appearing affirmatively to the prejudice of defendant, and none others can be made available under our Statute; and the judgment is therefore

Affirmed.