State v. Williams , 115 Iowa 97 ( 1901 )

Waterman, J.-

1 The person killed was a deputy sheriff of Union county, He was shot by defendant on the farm of the latter, some two miles from Crestón, while in the performance of his duty in attempting to levy a writ of attachment on property of defendant. The application for a change of venue was supported by the joint affidavit of eight citizens of the county, who united in a declaration of belief “that the excitement and prejudice against the defendant in this county is such that he cannot obtain a fair and impartial.trial in said county.” No reasons are given by these affiants for such belief, but many clippings from county newspapers were attached to the application, in which the circumstances of the homicide are set forth' in a somewhat sensational manner, and defendant denounced as guilty of cold-blooded murder. An article was also published in the papers setting forth the fact that subscriptions were being taken up in the county for the purpose of creating a fund with which to erect a4 monument to the dead officer, and giving a list of subscribers, with the amount each had contributed. The state made a counter showing, filing the affidavits of some 90 persons, citizens of the county, and residing in different parts, each of whom makes oath that no such excitement or prejudice exists as would prevent defendant from obtaining a fair and impartial trial in Union county. In addition to what has been said, it is proper to add that defendant, in his affidavit, made a show1ing that, because of public excitement and feeling in Crestón at the time of his arrest, he was taken to the jail of Clarke county and there confined until the time of his trial. The trial occurred some four months after the commission of the crime. A certain discretion is reposed in the trial court in passing upon applications of this kind, and this court does not interfere unless such discretion appears to have been abused. In State v. Edgerton, 100 Iowa, 67, the showing for a change of venue was quite as strong as that before us, and we held that there was no error in overruling it. State v. Weems, 96 Iowa, 426, in some of its features, ivas a stronger case than the one at bar in favor of a change, yet this court sustained the trial court in refusing it. Outside the affidavit of defendant, there is no evidence of any demonstration on the part of the people of Union county, and his affidavit shows no more than the gathering of a crowd in the city of Crestón at the time ojf his arrest, which was made immediately after the homicide. This was but a natural impulse on the part of these living so near the scene of the tragedy. If the crime was denounced by some persons in the crowd, and threats made against defendant, these facts justified the officers in removing the prisoner to an adjoining county, but they do not conclusively show such), prejudice on the part of the whole people of the county as would prevent defendant obtaining an impartial jury among them. Counsel for defendant refer to the answers given.by some persons called as jurors in the examination as to their qualifications, to support the claim that prejudice existed. We do not think the application for a change of venue can be sustained in his way, but, if it could, the answers to which reference is made cannot be said to have the effect claimed for them.

2 II. Exception is taken to the overruling of defend ant’s challenge to certain jurors. We need not set out the examinations in full. These jurors admitted having formed opinions, but, upon the whole examination, it appeared such opinions were qualified, and the jurors expressed themselves as able to render a just and fair verdict on the evidence in the case, guided by the instructions which the court should give. This was sufficient to qualify them. It is for the court to determine whether or not a juror is qualified. State v. Munchrath, 78 Iowa, 268. There was no error in overruling these challenges. State v. Brady, 100 Iowa, 194; State v. Hudson, 110 Iowa, 664; State v. Young, 104 Iowa, 734.

3 III. The correctness of the ninth paragraph of the court’s charge is challenged. No exception was taken to this instruction, and for that reason defendant cannot now be heard to complain of it. State v. Hathaway, 100 Iowa, 225, and eases cited. It is true, the giving of this instruction, together with 15 others, was made one of the grounds of a motion for a new trial, but this was too general in its terms, for none of the claimed defects in any' of the instructions were pointed out therein. See section 3709, Code, and notes. There is no reason why this section does not apply to criminal as well as civil cases. State v. Hathaway, supra; Code, section 5371. The policy of the law is to give every person accused of crime a fair trial, but it is not intended to give him power to take an unfair advantage of the court.

We discover no error, and the judgment is aeeirmed.