#### State of Iowa, Appellee, v. Joe Williams, Appellant.

1 CRIMINAL LAW: Included Offenses — Undue Leniency. An aeeused may not complain that he was convicted of murder in the second degree when he might have been convicted of murder in the first degree.

2 APPEAL AND ERROR: Absence of Evidence on Appeal. An order refusing a change of venue will not be reviewed on appeal, in the absence of the evidence on which the order was made.

3 CRIMINAL LAW: Change of Venue — Bias of Judge. Principle reaffirmed that prejudice of the trial judge is not made to appear simply from a showing that the judge has once presided over the trial of the charge, and has formed an opinion that the accused is guilty.

*8144 JURY: Competency — Qualified Opinion. Jurors are competent, notwithstanding the fact that they have formed an opinion, if the court is satisfied that they can and will lay aside their opinion and be governed by the testimony and the instructions of the court.

5 NEW TRIAL: Misconduct of County Attorney — Demanding Arrest of Witness. The request of the county attorney, in the presence of the jury, that the court order the arrest for perjury of a witness who has just testified, is not, in and of itself, reversible error. Especially fis this true when the request for sueh arrest was a mere inference to be drawn from the remark of the attorney.

6 WITNESSES: Credibility — Details of Former Convictions. If a witness is uncertain as to the number of times 'he has been convicted of felonies not similar to that for which he is on trial, his attention may be called to the particular crimes and to the circumstances and places where he had been convicted.

7 CRIMINAL LAW: Evidence — Best and Secondary — Dissimilarity of Finger Prints. Testimony is properly rejected to the effect that a witness had examined photographs of finger prints in the'clay at the scene of the crime, and photographs of finger prints of the accused, and that such finger prints were not the same, the said photographs not being produced or accounted for, except by testimony tending to show that they were in a public office, and presumptively readily obtainable.

8 WITNESSES: Impeachment — Minutes Before Grand Jury. Witnesses for an accused may, on the trial of the accused, be impeached by the minutes of their testimony taken before the grand jury *subsequent*to the finding of the grand jury.

9 INDICTMENT AND INFORMATION: Minutes of Testimony — Unused Minutes. An indicted accused is not entitled to a copy of the minutes of testimony taken before the grand jury, and used by the county attorney for the purpose of impeaching the defendant’s witnesses, such minutes not being minutes upon which the indictment in question was found.

10 APPEAL AND ERROR: Presumptions — Involuntary Testimony. Tho appellate court will not *pr-esume*that a defendant’s testimony given on a preliminary hearing of another party accused 'of the same crime, and used on the trial of the defendant on the latter’s cross-examination, was *involuntary.*

11 APPEAL AND ERROR: Presumptions — Scope of Instructions. One who, on appeal, predicates error on the failure to instruct as to certain subject-matters, must present a record showing affirmatively that the trial court did not, adequately cover sueh matters in the instructions given.

*815
      *Appeal from, Polk District Court.*— Lester L. ThompsoN, Judge.

April 1, 1924.

The defendant was indicted for murder in the first degree, committed by the killing of Sara Barbara Thorsdale. Upon a trial, he was found guilty of murder in the second degree. From a judgment of imprisonment in the state penitentiary for life, he *appeals.*

— Affirmed.

*Charles P. Howard*and *William E. Taylor,*for appellant.

*Ben J. Gibson,*Attorney-general, *Vernon B. Seeburger,*County Attorney, and *Bussell Jordan,*Assistant County Attorney, for' appellee.

VermilioN, J.

This is the second appeal in this case. The first opinion will be found in 195 Iowa 785, where the facts of the brutal and revolting crime with which 4he defendant is charged are fully set out. There is no occasion to again refer to them here in detail. It is only necessary to consider at this time the errors assigned as a ground for reversal.

i Criminal law fmses®dTmdue leniency. Upon the last trial, the defendant was found guilty of murder in the second degree. It is urged that the defendant should have been found guilty of murder in the first degree, or acquitted. We heartily agree with the proposition, but it does not follow that his conviction 0f included offense cannot stand. The evidence was, as to the principal facts, substantially the same as on the first trial, and as set out at length in the former opinion. It was amply sufficient to sustain a conviction of murder in the first degree. The defendant cannot complain if the jury dealt too leniently with him. *State v. Barkley,*129 Iowa 484; *State v. Shepherd,*129 Iowa 705; *State v. Haugh,*156 Iowa 639; *State v. Dimmitt,*184 Iowa 870.

*816
      2. ..Appeal and “error : absence ■ of evidence on appeal.
      *815Error is assigned on the overruling of defendant’s motion for a change of venue. Two motions were presented: one asking a change of place of trial to another county, on the ground *816that the defendant could not obtain a fair trial in the county where the indictment was returned, on account of the prejudice of the people of the county against him, and the other asking a change of trial to another judge, on account of the bias and prejudice of the judge before whom the case was about to be tried.

As to the first motion, it is stipulated in this court that about 30 affidavits were filed in support of the motion, and about 31 in resistance. The affidavits, aside from that of the defendant, are not in the record. The granting of a change of venue rests in the sound discretion of the court, and, unless it is found that the discretion was improperly exercised or abused, its action will not be interfered with, even upon conflicting testimony. *State v. Foster,*91 Iowa 164; *State v. Brown,*130 Iowa 57; *State v. Hassan,*149 Iowa 518; *State v. Icenbice,*126 Iowa 16; *State v. Blodgett,*143 Iowa 578. In the absence of the evidence passed upon by the court below in denying the motion, it is manifest that no error is shown.

3. Criminal law: change of venue: bias of judge. The motion based upon the allegation of prejudice on the part of the trial judge did not entitle the defendant to the chañare, as a matter of riarht. The judge mav consult his own feelings, as well as the showing made, and grant or deny the change, as he may think the right demands, in the exercise of careful discretion. *State v. Foley,*65 Iowa 51. It is the duty of the judge to grant or deny the change as the fact of prejudice appears to him, and this court will interfere only where he has abused the discretion vested in him. *State v. Billings,*77 Iowa 417. Prejudice is not shown to exist on the part of the judge merely because he has formed an opinion of the guilt of the defendant, from having presided and heard the evidence at a former trial. The prejudice contemplated is not merely a belief as to the guilt or innocence of the defendant, but the presence bf such a state of feeling as will incline the judge against the defendant in his rulings and instructions on the' trial. *State v. La Grange,*94 Iowa 60. The trial "judge, in passing on the motion, said that he heard the case under an assignment made by another judge, and was conscious of no bias or prejudice against the defendant. No abuse of discretion is shown.

*817Error is assigned on the overruling of challenges for cause to certain jurors.

4. JuRY: competency: qualified. opinion. In one instance, the juror said he had read some of the ease and discussed it some, and had formed “somewhat of an opinion,” that it would require some evidence on the part of the defendant to remove; that he had not talked with anybody who claimed to know about the case. that thought he could give the defendant a fair trial; that he would be willing to be tried by a man feeling as he did about the case; that he would be guided by the evidence and the instructions of the court, and nothing else; that there was nothing in his mind that would prevent him from doing that. Another juror said that, from what he had read and heard about the case, he had formed some opinion, that it would require some evidence to remove; that he could lay that aside, and try the case upon the evidence and the law as given by the court, and nothing else; that his opinion was not unqualified, and would not influence him in any way in the trial of the case. There wab no error in overruling challenges to these jurors. *State v. Field,*89 Iowa 34; *State v. Foster,*supra; *State v. Hassan,*supra.

5. Naw rRrAL: misconduct of county attorney: demanding arrest of witness. It is contended that there was prejudicial misconduct on the part of an attorney for the State in suggesting to the court, in the presence of the jury, that the witness Harriett Martin ■ should be arrested, and on the part of the court • m ordering the sheriff:, m the presence of the jury, to place the witness under arrest. The record discloses that the witness had been cross-examined at considerable length concerning her testimony on former trials, and had admitted, in some instances, that her testimony just given differed from that formerly given by her. Her answers were frequently evasive and not responsive. At the close of her examination, one of the attorneys for the State said:

> “If the court please, this witness, as you have heard her testimony here, I ask the court to take such action as is proper and necessary under the circumstances.”

The record, as made by the official reporter, does not show that any action was taken on the request, or that anything *818further occurred in that connection. In support of a motion for a new trial, defendant filed affidavits that, after purporting to give the request of counsel, though in materially different language from that quoted above, recite as follows:

> “That Sheriff Findley was in court, near the jury box, at the time, and immediately approached Judge Thompson, who seemed to have motioned to him from the bench; and after a brief conversation in a low tone of voice, the sheriff came around in front of the jury, as the witness was making her way from the stand, and took her by the arm and turned her around, and, still keeping his hold on her arm, led her from the court room, in the presence of the jury and the court. ’ ’

It is not shown that the court directed that the witness be arrested, or that she was in fact arrested. If it be conceded that such an inference might be drawn from this transaction, is' it the only reasonable inference that can be so drawn? Error is not to be presumed. It must appear upon the record. If it should be conceded that, when counsel, requested the court to take such action as was necessary and proper under the circumstances, he was asking that she be arrested for perjury, — and this must be but an inference, for he did not in direct terms make any such request, — that, while untimely and improper, standing alone, would not Require a reversal. *State v. Pilkington,*92 Iowa 92; *People v. Duncan,*261 Ill. 339 (103 N. E. 1043).

The witness is described by counsel for appellant as “an old colored woman, approximately seventy years of age, very illiterate, and easily excited.” She had been subjected to a vigorous and lengthy cross-examination, relating largely to her testimony on former trials; she had repeatedly contradicted herself, had been several times admonished by the court to answer the questions put to her, and Avas apparently much confused. These circumstances are mentioned, not as affording any excuse for her arrest in the presence of the jury, but as indicating that the inference that she was so arrested is not the only reasonable one to be drawn from the facts that the court spoke to the sheriff and the latter led her from the room. In the absence of any showing whatever that the court did in fact so direct, or that she was ever actually arrested or taken into custody as an offender, we do not think the circumstances are such as to *819require us to so find. In- connection witb tbe indefinite request of counsel, a situation was presented that was susceptible, no doubt, of that construction, and one that, for that reason, should not have been permitted to arise, but not one, we think, from which it must be presumed that prejudice resulted.

The defendant, when on the witness stand, was asked if he had ever been convicted of a felony, and said that he had. When asked how many times, he said:

> 6. Witnesses: credibility: details of former convictions. “My best judgment is, twice. I am not sure, — it could be more. It might be three times, — I am not sure.”

Following these answers, he was asked if he had not been convicted at particular places, and of what offenses. Over objection, he was required to answer. He was again asked how many times he had been convicted, and replied: “You have got a record here, — that will show.” The court, in ruling on the objection, said:

> “I don’t propose to permit the question as to details to be offered, but the character of the offense may be pointed out and identified. ’ ’

The ruling followed the authority of *State v. Carter,*121 Iowa 135, and was proper. The State had a right to show, for the purpose of affecting his credibility, that he had been so convicted, and how many times, and, in view of the uncertain memory of the witness, had a right to call his attention to the particular crimes and the circumstances, and to the places where they were committed, in the effort to refresh his recollection. *Dickson v. Yates,*194 Iowa 910. The offenses inquired about were not similar to the one for which the defendant was then being tried, and the ease does not come within the rule laid down in *State v. Concord,*172 Iowa 467, where there was a manifest effort to show, under the guise of impeachment, that the defendant had been convicted of a like offense.

*820
      7. Criminal law: evidence: best and secondary:, dissimilarity of finger prints.
      *819The defendant offered to show by a witness, Matt Thies, that the witness had been at one time in charge of the identification bureau of the sheriff’s office; that pictures were made of *820finger prints in the clay at the scene of the crime, and of finger prints of the defendant, and that the witness had compared them, and they were not the same; that the witness was no longer connected with the sheriff’s office, and did not know where either the clay or the finger prints were; and that he believed that the pictures made of the finger prints at the scene of the crime were in the hands of the state identification bureau; and that defendant had been unable to get any track of them. The photographs themselves were the best evidence of what they showed. *Elzig v. Bales,*135 Iowa 208; *Lang v. Marshalltown Lt. P. & R. Co.,*185 Iowa 940; *Daniels v. Iowa City,*191 Iowa 811. The fact that the witness no longer had them under his control, and did not know where they were, did not authorize secondary evidence to be received of what they showed. They were not shown to have been lost or destroyed. They were apparently among the records of a public office, and doubtless available for production on the trial, had proper methods been pursued. Counsel was advised by the court that, if produced, they would be admitted. Whether, had the photographs themselves been in evidence, testimony might have been received in explanation of what they showed, we are not called .upon to determine. There was no error in refusing to admit the offered testimony. *Marion v. Coon Const. Co.,*216 N. Y. 178 (110 N. E. 444).

8. Witnesses: impeachment: minutes before grand jury. Complaint is made that certain witnesses for the defendant had, after the indictment was returned against him, been called before the grand jury and interrogated on the matter concerning which they testified on the trial, and that statements made by them before the grand jury were introduced by the State, over objection, for the purpose of impeachment. In this there was no error. In *Coppenhaver v. State,*160 Ind. 540 (67 N. E. 453), the precise question was raised, and it was said that, while it might be that the witnesses would have some ground of objection on being 'called before the grand jury after an indictment was returned, it was not perceived how the indicted person could ordinarily complain, and that:

> “Even if it appears, as the result of such a course, that the witnesses that he afterwards calls aré seriously contradicted by *821their testimony before the grand jury, it would seem to be a sufficient answer to his complaint that the search is for the truth* and that he has no such peculiar interest in his witnesses that he may successfully complain that they have been interrogated as to the facts in advance of the trial.”

In that case, the defense was insanity, and the witnesses so called before the grand jury were sisters of the defendant, and they were required to testify to the family history and his antecedent conduct, and to express an opinion as to his sanity. This testimony was used by the State in cross-examining the witnesses on the trial. Here, the witnesses testified in support of the defendant’s defense of alibi, and their testimony before the grand jury was similarly used. It cannot be contended, of course, that, on learning that the defense of one under indictment will be of an affirmative nature, and will depend on facts disconnected with the act itself, the State cannot investigate the facts on which it will be based. And, as said by the Indiana court, the manner of the investigation concerns the witness, rather than the defendant. It is not pointed out, nor are we able to see, in what manner any constitutional rights of the defendant’s were invaded.

In this connection, complaint is made of the refusal of the court to order that a copy of the minutes of the testimony of these witnesses be furnished to the defendant.

9. Indictment and -INFORMATION: minutes of testimony: unused minutes. When an indictment is found, the names of all the witnesses on whose testimony it is found -must be indorsed thereon before it is uresented in the court, and must be. with the minutes of the evidence of such witnesses, presented to the court by the foreman, in the presence of the grand jury. Code Section 5276. Such minutes of evidence shall not be open for the -inspection of any person except the judge, the county attorney, the defendant, and his counsel.

> ‘ ‘ The clerk of the court must, within two days after demand made, furnish the defendant or his counsel a copy thereof without charge, or permit the defendant’s counsel, or the clerk of such counsel, to take a copy.” Code Section 5277.

The indictment was not found on the testimony of these witnesses, nor was a minute of their testimony with the indict*822ment when it was returned. These provisions afford no basis •for the demand that defendant be furnished a copy of the minutes. The minutes themselves were not offered in evidence nor shown to the witness. We think there was no error in refusing to order that a copy be given defendant.

It is insisted that the court erred in not permitting the witness Harriett Martin to explain, on cross-examination and redirect examination, the discrepancy in her testimony. No specific rulings are pointed out as erroneous. Upon a search of appellant’s abstract, two questions are found that were propounded to the witness on redirect examinatiqn relating to what she had testified on a former trial. To these, objections were sustained. Neither of the questions called for any explanation of her testimony. Questions and answers from the transcript of her former testimony were merely read to her, and she was asked if she so testified. She had already testified to substantially the same things, on the trial then in progress. We find no prejudicial error here.

The defendant, when on the witness stand in his own behalf, was asked:

> 10. APPEAL A~D ~flbLOR: presumptions: involuntary testimony. <!Q. Now, Joe Williams, I want to ask you if, upon preliminary hearing of George Davenport in the municipal court in September, October, November, of 1921, you were not asked the following question, and didn’t,you make the following answer, relating back to the time you said you nad your JLuncli, you and Davenport: ‘Q. -^rh0 paj(j for -fchat? A. He did. Q. Then where did you go ? A. Into the alley. ’ Did you so testify at that time and place?”

To this the following objection was made:

> “Mr: Howard: If the court please, the defendant at this time desires to renew his objection to any questions asked on preliminary hearing as being incompetent, irrelevant, immaterial, and improper, in violation of defendant’s constitutional rights, and for the further reason, as set up in the former record, 'the defendant was carried over there against his will, and over the objection of counsel, and compelled to testify, and it is unquestionably against his constitutional rights.’’’

*823The objection was overruled, and the defendant answered: “I may, — I would not say sure I did.” ■

The defendant had testified that the watch belonging to the deceased, which he had pawned on the day she disappeared, was given to him by Davenport, and that Davenport had confessed to killing her. The defendant introduced other testimony tending to show that Davenport was guilty of the crime. The defendant had been arrested a few days after the discovery of the body of deceased, and later released. Davenport was also arrested, at what time the record does not disclose. But it appears from a comparison of the date on which the indictment was returned, and the date of Davenport’s preliminary examination, as disclosed in the question, that the latter occurred after the defendant was indicted. It may be conceded that the defendant could not be compelled to give testimony against Davenport that might tend to incriminate himself. That is the basis of the objection to the question under consideration. But that he might voluntarily testify against Davenport must also be conceded. The record does not disclose any other question asked of the defendant concerning his testimony on the Davenport preliminary, nor any prior objection or “former record” to which the objection set out above could refer. There is nothing in the testimony of the defendant himself, as set out in the abstract, to show that he was compelled to testify on the preliminary examination of Davenport, nor is such fact shown in any way whatever. It is true, it is alleged in the motion for a new trial that his testimony on that occasion was given over Davenport’s objection, and that Williams asked that he.be not compelled to give evidence in that case. This is a mere allegation, absolutely unsupported by anything of record in this case. Moreover, it may well be doubted if Williams could have refused to testify against Davenport, so long as his testimony had no tendency to incriminate himself. We conclude that it does not appear but that the defendant’s testimony on the Davenport preliminary examination was voluntary. No other or further attempt was made to show what the defendant had testified to on the Davenport preliminary. No prejudicial error is shown in the ruling in question.

*824
      11. Appeal *am>*error: presumptions : scope of in- * structions.
      *823Finally, it is insisted that the court erred in not giving an *824instruction on the subject of alibi, and in refusing three instructions requested by the defendant. The instructions given to the jury, except one on the subject of impeachment, of which no complaint is now made, are not set out in the abstract. It does not appear, therefore, that the court did not instruct on the subject of alibi, or that the instructions given did not fully and correctly cover all matters to which the instructions requested related.

We have examined the record with care, and, no prejudicial error being found, the judgment *is*— Affirmed.

Arthur, C. J., EvaNS, PeestON, Stevens, and De G-raee, JJ., concur.