(180 N.W.) fore it for comparison, refusal to let him fur-¡22. Criminal law nish another sample by writing in the presence of the court was not reversible error.

16. Criminal law ~415(1)—Notes from prosecutrix not addressed to defendant nor shown to have ever been in his possession not admissible.

In a prosecution for statutory rape, notes written by prosecutrix, and not received by defendant, objected to as being self-serving, and not shown to have gone out of prosecutrix's family, should not have been admitted.

789 (17) — Instruction on reasonable doubt must not be limited to evidence given, since it may arise from want of evidence.

An instruction that a reasonable doubt must

be one suggested by, or arising out of, the evidence is erroneous as excluding those arising from want of evidence.

23. Criminal law 825(1)-Objection to lack of specific instruction not available where further instructions not offered.

Defendant may not complain that an inun-struction was not sufficiently specific that, the state having elected which act it would rely upon for conviction, there could be no conviction on any other, where he offered no instructions thereon.

17. Rape 38(1)—Testimony that two addressed and unsigned notes were received by prosecutrix from defendant held inadmissible.

In a statutory rape case, testimony of prosecutrix and members of her family that she received two unaddressed and unsigned notes asserted to be in defendant's handwriting, getting them from a receptacle wherein she says she and defendant deposited notes, should have been excluded, for it helped the jury to believe the defendant wrote the letters.

A recital that at close of state's testimony the court sustained a motion requiring the state to elect on which act of intercourse it would rely held not objectionable as assuming that 18. Criminal law 433-Unsigned and unad- the particular act elected had been developed dressed letters held admissible. by the testimony.

Although letters alleged to have been written to prosecutrix by defendant in a rape prosecution were unsigned and unaddressed, they were admissible if the jury found them to be in defendant's writing, where they tended to prove the crime charged.

19. Criminal law 494-Conflicting evidence of handwriting experts held sufficient to send authorship of notes to the jury.

25. Criminal law 841 - Exceptions to in

structions must be made within statutory or extended time and may be included in motion for new trial.

Exceptions to instructions must be filed within the time provided by Laws 37th Gen. Assem. c. 24; yet under this act exceptions may be embodied in a motion for new trial filed within five days after verdict, or within such further time as may be allowed by the court.

In a statutory rape case, conflicting testimony of experts as to comparison of writing in notes alleged written by defendant to prose-26. Criminal law 1134(3)-Where case must cutrix held sufficient to send the question of be reversed on certain grounds, other alleged authorship to the jury, and the fact that there errors become immaterial. was incompetent evidence admitted thereon would not render the submission erroneous.

20. Criminal law 561 (2) Corroborative evidence as well as primary must be proven beyond reasonable doubt.

An instruction that the prosecutrix's testimony must be corroborated "by preponderance" or by "a fair preponderance of the testimony" is erroneous, since corroborative evidence as well as primary evidence must be established beyond a reasonable doubt.

21. Criminal law 823(15)-Instruction as to corroborative evidence held not cured by other instructions on reasonable doubt.

In a statutory rape case, where the court instructed there could be no conviction without corroboration of prosecutrix, and that mere opportunity to commit the crime is not sufficient corroboration, a further instruction that opportunity would be sufficient if it appears "to your satisfaction that such opportunity was sought and brought about" for that purpose, erroneous as not requiring proof beyond a reasonable doubt, was not cured by further instructions that there could be no conviction unless alleged acts and defendant's connection with the crime were established beyond a reasonable doubt.

In a criminal case objections that there was error in refusing to direct a verdict for defendant because of insufficient evidence, and that there was insufficient corroboration, are unnecessary questions, where there must be a reversal for other reasons.

27. Criminal law 1129(3)—Assignment of error held too general.

An assignment of errors relied on for reversal that the court "erred in overruling appellant's motion in arrest of judgment and for a new trial" is too general for review.

Where cause must be reversed and new trial granted so that there has been ample time

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

for preparation, a denial of an application for [ is quite unlikely that on retrial any juror continuance, if error, presents a moot ques- who served on the first trial will be pertion. mitted to sit on the second. So that, as said, ordinarily we would have here nothing

Appeal from District Court, Marion Coun- but moot question. In such cases anything ty; Lorin N. Hays, Judge.

Conviction on an indictment charging rape. Defendant appeals. Reversed and remanded. J. O. Watson, of Indianola, and L. D. Teter, of Knoxville, for appellant.

H. M. Havner, Atty. Gen., F. C. Davidson, of Emmetsburg, and N. D. Shinn, Co. Atty., and W. H. Lyon, both of Knoxville, for the

State.

we said would be merely a general guide for the future, and our reports are filled with such guides now.

We

[6] But it is urged that for error in ruling upon challenge to one member of the grand jury the indictment should have been quashed or set aside. Of course, that makes the propriety of the ruling on the challenge a live question. By his challenge the defendant asserted, in effect, that one member of the panel was related to prosecutrix by consanguinity of affinity within the ninth de gree. The objection was not made until after the grand jury had been sworn. think it is sufficiently shown that the attorney for defendant had no knowledge of this relationship until he learned of it two or three days after the cause had been submitted to the grand jury, and that even then he was not correctly advised as to the exact nature of the relationship. We may assume that, when counsel examined this grand juror, there was not elicited the fact that any relationship existed; that counsel was

SALINGER, J. [1-4] I. Whether the petition for a change of venue was in fact meritorious is not a question before us. The best sustained application for such change must be overruled if it be not supported by affidavit as the statute requires. Some affidavits were withdrawn. The court overruled the application and declared in connection therewith: "As to the statutory grounds, I do not think the necessary affidavits now remain." This recital or statement to the effect that there had been enough withdrawals to reduce the affidavits below the required number is presumed to state the truth. Bales v. Murray, 171 N. W. 747. With less than the required number of affidavits attached, it became the duty of the court to overrule the petition. True, after the same had been overruled there was a request for permission to "put on some more proof," and an offer to call witnesses to show prejudice and passion. The trial judge denied this application and expressed himself as of opinion that the grounds for change of venue must be established by affidavit. We are not required to pass upon this ruling, because no exception was taken thereto. Following this, defendant offered to attach "other signatures and additionallowed for these reasons only. However, it prosignatures for a change of venue," to attach "three additional signatures to the affidavit or to attach three additional affidavits to said petition, and to amend said petition by so doing. The court declined to permit this, and placed it on the ground that it had already ruled on the motion. To say the least, the court had a discretion as to permitting said amendment after the motion had been overruled. We are unable to hold that this discretion was abused.

[5] II. Many complaints are made of rulings on challenges interposed to grand jurors and to trial jurors. Ordinarily the question of whether such rulings were right is a moot one where there must be a new trial without reference to those rulings; for, unless the reversal sets aside the indictment, there will be no grand jurors to challenge after remand. And so the question of whether challenges to grand jurors were rightly ruled on is academic. And it

misled by the answer of the juror even if innocently made; that counsel believed from this examination that none of the panel had any acquaintance with the father of prosecutrix; and that, if counsel had known this relationship, he would have challenged the juror before the grand jury was sworn. The state contends that section 5243 of the Code recognizes no ground of challenge to an individual grand juror except for his being prosecutor, or because he has formed or expressed such opinion as would prevent him from rendering a true verdict. The statute does say that the challenge by defendant is al

vides also that: (1) Challenge may be made by the state or the defendant that the grand juror does not possess the qualifications required by law; (2) that certain enumerated challenges may be made by the state only. Then follows the said provision as to what the defendant may challenge for. The statute as a whole seems to leave it in doubt whether the limitation as to said challenge by defendant narrows the grounds upon which the defendant may interpose challenge, or is a privilege by which he alone is permitted to interpose the said two challenges. But the state contends further that challenges to an individual grand juror must be made before the grand jury is sworn. If that is so, we need not decide whether the challenge proceeded on permitted grounds. Appellant asserts that by reason of certain statutes and decisions, his challenge was made in time.

Section 3688 of the Code defines and speci.

(180 N.W.)

"Q. Would you say any man who would vol- [ was not about. untarily have intercourse with a girl under 15 cepts.)" years of age would have a good moral character? A. I would say he would not.

"Q. If as a matter of fact you knew and had known it to be a fact prior to the 12th of January of this year that a man had sexual relations with a girl under 15, you would not then say that he was a man of good moral

character, would you?

A. No.

"Q. What would you say as to the morality or immorality of a man past 40 who would voluntarily have sexual intercourse with a girl under 15 years of age? A. Immoral."

These rulings are approved. See State v. Rowell, 172 Iowa, 214, 154 N. W. 488; 40 Cyc. 2496, 2497; Basye v. State, 45 Neb. 261, 63 N. W. 811; Annis v. People, 13 Mich. 511. [9] V. Complaint is made of the examination following:

"I was sitting in the chair first, and slid down the chair something like this, only down further.

"Q. And what was your sister, Anna, doing at this time? A. I think she was in the bedroom reading. (Objected to as incompetent for being a conclusion and opinion. Overruled. Defendant excepts.)

"Q. And you could have heard her coming had she started towards you? A. Yes. (Objected to as an opinion and conclusion.) "Court: Yes; I think so.

"Counsel for Defendant: We move to clude it. (No ruling. Defendant excepts.) "Q. Now what assurance did you have that your grandmother or your sister would not find you in this act? (Objected to as immaterial, incompetent, and an opinion and conclusion. Overruled. Defendant excepts.) A. Well, I didn't know whether they would or not. thought if they could come I could hear them. (Defendant moves to exclude as a conclusion and opinion and as incompetent. Overruled. Defendant excepts.)

I

(Overruled. Defendant ex

None of the foregoing rulings exhibit any reversible error.

[10] VI. We are told in the errors relied on for reversal that the court erred in limit

ing comparison of writings to a comparison with a specified signature made by prosecutrix, and in declining to admit certain of her other signatures. It may be conceded the brief points tell us why this would be erroneous, if done. But no reference is given to any place in the record where it may be found that said alleged arbitrary limitation was indulged in. We cannot consider this assignment. See Wheeler v. Schilder, 183 Iowa, 623, 167 N. W. 534.

[11] (b) Appellant offered Exhibits A, B, C, and D, signatures of prosecutrix to minutes of evidence of indictment for the purpose of comparison with the handwriting in Exhibits 4 and 5, but the court admitted Exhibit A only. This was error. See 6 In Mutual Life Ency. of Evidence, 435. Ins. Co. v. Suiter, 131 N. Y. 557, 29 N. E. 822, it was held to be error where the trial court admitted only one and excluded three genuine signatures.

The

[12] (b) A bundle of 60 checks was offered by defendant. The state, while contending that these checks were immaterial, incomex-petent, and irrelevant, said no objection would be made so far as the signature was concerned. On inquiry, counsel for defendant stated that the checks were offered not only as to the signature, but further to identify the handwriting of defendant. court limited the effect of the testimony to bearing upon identifying the signature of defendant, and this ruling is complained of. It is asserted that section 4620 of the Code makes this limitation by the court an erroneous one. That statute but provides that evidence respecting handwriting may be given by experts by comparison or by comparison by the jury with writings of the same person which are proved to be genuine. It seems to be conceded that the signature to said checks was that of the defendant, but we find nothing in the record showing that all the writing on the checks was his. It is not unknown to have the writing in the body of a check done by one person while the signature is appended by the drawer. It will be time enough to determine whether the limitation on part of the court was erroneous when it shall appear that the limitation excluded writing done by the defendant.

"Q. What was your grandmother's condition as to any reason why she was not liable to come in? (Objected to as incompetent, a conclusion and opinion. Overruled. Defendant excepts.) A. Well she might come in for a paper or anything; but I never thought she would, and she didn't.

"Q. What about your grandmother's habits of being asleep, or awake, or sitting down, etc.? (Objected to as immaterial, not redirect, and as calling for an opinion and conclusion. Overruled. Defendant excepts.) A. If she was reading, if she started to read, she would go to sleep most of the time. (Move to exclude the answer as an opinion and conclusion. Overruled. Defendant excepts.)

"Q. What happened Mrs. Barnes. (Objected to as a conclusion from the noise she made.)

"Court: No; she knows. She says she went out of her room and in there and closed the door. (Exception.)

"Q. What happened as soon as she locked the door. A. She went to the bathroom window and raised it. I didn't see defendant.

"Counsel for Defendant: Move to exclude all the testimony of the witness in reference to this matter because it now appears defendant

[13] (c) It seems to be conceded that for the purpose of testing the qualifications of a witness who had said that in his judgment certain writings were all done by the same person it was proper to bring before the jury four pages of a deed record of the county. The court limited the scope of these pages to assisting the jury in determining the

(180 N.W.)

qualifications of the witness to distinguish the view that it must affirmatively appear that or determine handwriting. Appellant says the knowledge or standard of comparison was these pages are "ancient documents" and acquired before any disputes arose." contain the same common peculiar characteristics which Mr. Wright found in Exhibits 11 and 12 and in other exhibits, and the use of said pages should not have been limited as was done by the court, and they have gone to the jury with the other exhibits. The specific complaint seems to be that the evidence was thus limited. We hold that these pages of this record book were receivable for that narrow purpose only.、

[14] Another exception complains of a refusal to allow these pages to be taken by the jury to the jury room. They were but four pages of an entire volume. The court may have felt that taking the book to the jury room might invite examination and consider ation of other parts of the book with which the jury had no concern. On the whole, we conclude that, if this ruling were error, it is insufficiently grave to justify a reversal. [15] VII. Counsel for defendant asked the latter to take a piece of paper and a pencil and do some writing in the presence of the court. An objection by the state that any sample of handwriting being made here was immaterial, incompetent, irrelevant, and self-serving was under exception sustained. And like ob Jections were sustained to an offer that defendant would occupy any table suggested by the court or counsel for the state and take any writing material or paper given by the clerk of the court, and take pen and pencil and write anything dictated by counsel for either party, all for the purpose of comparison of handwriting.

The briefs and such independent investigation as we have been able to make throw no real light upon the point. The case of Haynie v. State, 2 Tex. App. 168, is in effect a holding that, if an admission as to writing got by duress and while in custody is the only basis a witness has for saying he is acquainted with the writing of the prisoner, such witness is not shown to be competent to speak to the point. To like effect is Reg. v. Crouch, 4 Cox, C. C. It can be inferred from Reid v. State, 20 Ga. 681, that it is a material consideration whether accused had a

motive for disguising his handwriting. In 22 Cyc. 629, 630, it is said:

"Nonexpert witnesses who have acquired their knowledge of the handwriting of the person whose signature is disputed for the express purpose of enabling them to testify are usually held incompetent, although it has been considered that the mere fact that the witness induced the party to write for the purpose of obtaining a knowledge of his handwriting wifi not render him incompetent where the writer had no motive for disguising the handwriting. While it has been held that the mere fact that the witness acquired his knowledge of the handwriting after the controversy arose goes to the weight, and not to the competency, of his evidence, there is considerable authority for

Defendant relies upon State v. Farrington, 90 Iowa, 679, 57 N. W. 606. What we find in it is: (a) Where near the time of the commission of an alleged forgery defendant stopped at a hotel, and the landlord saw him write his name on the register, this signature may be used as a standard of comparison. (b) Preceding the commencement of the trial defendant filed a motion for continuance purporting to be signed by him. The state offered the signature to this motion in evidence and as a standard for comparison. It was admitted and was used as such standard. We approved this, and said that, while the statute absolutely requires that the genuineness of the standard writing must be established, it makes no provision as to how it shall be done, and that, this paper being filed for a legitimate purpose deemed by defendant to be necessary or desirable, the signature purporting to be signed is thus sufficiently qualified to be a standard. We are not agreed, but some of the members are inclined to hold that the request of the defendant should have been granted; that, while it is true such test might be made self-serving, and the writing done in the courtroom be made purposely unlike the handwriting of defendant, that would seem to be matter that goes to the weight rather than the admissibility; that defendant knew the jury had signatures by him confessed to be genuine; and that while, on one hand, he had a motive for at this time disguising his writing, he might be deterred by the fear that it would be de tected because of admittedly genuine and true handwriting that the jury had, and that the disguising would tell against him with the jury. This need not be settled now because the denial of the application is not reversible. As the jury had the genuine writings of defendant, refusal to let him furnish another sample was, at most, a refusal to receive what was already adduced. If he proposed to furnish a spurious sample, it was not error to stop his doing so. If he

proposed to submit a true sample, the jury already had such.

[16] VIII. Complaint is made of receiving testimony as to exhibits 4 and 5. These are two notes in the writing of prosecutrix. The testimony in question is this:

"Prosecutrix: Exhibit 4 is a note I wrote and I put it in my father's pocket.

"Q. How did you happen to do that? (Objected to as immaterial, self-serving, and not in any way binding on defendant; incompetent and irrelevant. Overruled. Defendant excepts.) A. I went to put it in defendant's pocket, and Father's coat was hanging there, and I put it into Father's pocket (by mistake). The coats were pretty near alike. (Defend