State v. Red
Decision Date | 16 March 1880 |
Citation | 4 N.W. 831,53 Iowa 69 |
Parties | THE STATE v. RED |
Court | Iowa Supreme Court |
Appeal from Jasper District Court.
THE defendant, with Robert Graves, Andrew Smith and Archie Brown was indicted by the grand jury of Polk county for the murder of Ella Barrett on the 28th day of August, 1874. Upon petition of defendant, the venue of the cause, as to himself was changed to Jasper county. Upon a trial in that county he was convicted of murder in the second degree and sentenced to imprisonment in the penitentiary for twelve years, and now prosecutes his appeal to this court.
REVERSED.
Bowen & Leavens, for appellant.
J. F McJunkin, Attorney General, for the State.
I.
At the trial before the District Court, the prisoner was a witness in his own behalf. The court held that the rules governing the cross-examination of other witnesses applied to the cross-examination of the prisoner when testifying in his own behalf, and permitted questions to be asked him intended to lay the foundation for impeachment by contradicting the statements he made in answer thereto. The defendant insists that in this ruling the court below erred.
Our statute provides that, "defendants in all criminal proceedings shall be competent witnesses in their own behalf, but cannot be called as witnesses by the State." Acts Seventeenth General Assembly, Chap. 168, Sec. 1. The same statute, section 2, provides that the rules of evidence prevailing in civil actions as prescribed by the Code, are applicable to criminal proceedings, so far as they are not inconsistent with other express provisions upon the subject. There is nothing in the Code or subsequent legislation limiting or changing the rules of evidence pertaining to the cross-examination of witnesses. We know of no reason why a defendant who is a witness in his own behalf should not be subjected to the tests of credibility, of memory and of intelligence which the law has wisely provided by means of cross-examination. Surely the legislature could not have intended that one on trial for a felony is entitled to more credit than another witness, by providing that his testimony shall not be subjected to the ordeal of the cross-examination. The explicit provision of the statute upon this subject renders further discussion of the question unnecessary. Counsel for defendant relies upon Code, section 4238. It is applicable alone to preliminary examinations of persons charged with crime, and, therefore, is not to be considered in this case.
II. The defendant sought to establish an alibi. The court instructed the jury that "upon this question the burden of proof is upon the defendant, and before he can, on this ground alone, demand an acquittal, he must show where he was, and that he could not, therefore, have been present at the commission of the offense."
Surely an alibi will not be presumed; it must be proved. The burden of proof must rest upon the defendant who seeks to establish it, just as the burden of proving defendant's presence at the place of the crime rests upon the state. Of course an alibi cannot be established except by a preponderance of evidence. No fact can be established by any less evidence. State v. Northrup, 48 Iowa 583; State v. Hardin et al., 46 Iowa 623; State v. Vincent, 24 Iowa 570.
This rule does not abrogate the doctrine of reasonable doubt. A prisoner cannot be convicted upon a preponderance of evidence. There must exist no reasonable doubt of his guilt, based upon the evidence. But there may be a preponderance of evidence against him and yet a reasonable doubt of his guilt. In such case the jury may acquit. This reasonable doubt may be based upon the whole evidence, or upon the evidence establishing certain essential facts necessary to be established, or upon evidence of facts inconsistent with the prisoner's guilt. The doctrine extends to all the evidence and to each part tending to establish independent facts. If, upon consideration of the whole evidence or any part of it, the reasonable doubt arises as to any essential fact, the jury must acquit.
III. A witness, S. B. Smith, sometimes designated in the record by the name Squire Smith, gave the following testimony:
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