
    Miller v. The State of Iowa.
    The act allowing a change of venue in suits pending before justices of the peace, approved January 24, 1853, applies to criminal, as well as civil, eases.
    Where an affidavit for an appeal in a criminal case, shows error, which is not controverted by the return of the justice, the appellant should be granted a new trial.
    
      Error to the Mahaska District Court.
    
    This was a complaint entered before a justice of tbe peace, against the defendant, for an assault and battery. The defendant filed a proper affidavit for change of venue, which was refused, upon the ground that the act of 1858, (stat. 1858, 94), does not apply to criminal cases. The tlial proceeded before the justice, and the defendant was convicted. He filed an affidavit of facts, and appealed. In the District Court, the judgment of the justice was affirmed.
    
      Ci'ookham & Fisher, for the plaintiff in error.
    
      Samuel A. l&ice, (Atty. Geni.,) for the State.
   Woodward, J.

We think the District Court erred in holding that the act of January 24, 1853, allowing a change of venue before a justice, did not apply to criminal cases. The Code did not allow such change of venue, and this act was designed to remedy the supposed evil. It must apply to criminal as well as civil causes.

The District Court should have granted the defendant a trial in that court, on his affidavit for appeal. This is sufficient, unless controverted by the return of the justice, which is not the case in this instance. State v. Carretson, ante. In this there was error, and the judgment is reversed.  