State v. Birkby

• Decision Date: 13 January 1904
• Citation: 97 N.W. 980,122 Iowa 102
• Parties: THE STATE OF IOWA, Appellee, v. JOHN BIRKEY, Appellant
• Court: Iowa Supreme Court

97 N.W. 980

122 Iowa 102

THE STATE OF IOWA, Appellee, v. JOHN BIRKEY, Appellant

Supreme Court of Iowa, Des Moines

January 13, 1904

Appeal from Fremont District Court.--HON. A. B. THORNELL, Judge.

INDICTMENT and conviction upon charge of larceny. Defendant appeals.

Reversed.

C. W Mullan, Attorney General, and C. A. Van Vleck, Assistant Attorney General, for the State.

W. E Mitchell for appellant.

OPINION

WEAVER, J.

The larceny alleged was of a team of horses. The defense was to the effect that appellant hired the horses from the owner in good faith, and without any intent to appropriate them to his own use but after receiving them into his possession became greatly intoxicated, and disposed of them without felonious intent. Among other things in support of his defense, appellant offered witnesses who testified they had long been acquainted with him, and that prior to this transaction he had borne a good character for integrity and honesty. In charging the jury upon this feature of the case the court gave the following instruction: "Par. 11. Evidence has been introduced to show that prior to the transaction in question the defendant's general reputation for honesty and integrity was good in the community in which he lived. Now, good character is not a defense to crime when a crime has in fact been committed. But where good character is shown it is proper to be considered in determining whether a person bearing such a character would be likely to commit the crime in question, and might be sufficient in a doubtful case to turn the scale in favor of the defendant." To the giving of this instruction appellant excepts, and assigns error thereon. Under the rule heretofore adopted and quite frequently followed by this court, this instruction cannot be approved. It is true that in some other states the doctrine of this instruction obtains, and evidence of good character is allowed little or no weight, except in cases of a doubtful or inconclusive character. But after examining these precedents we have distinctly declined to follow them. State v. Northrup, 48 Iowa 583; State v. Horning, 49 Iowa 158; State v. Jones, 52 Iowa 150, 2 N.W. 1060; State v. Wolf, 112 Iowa 458, 84 N.W. 536. See, also, Greenleaf, Evidence, section 25. In State v. Gustafson, 50 Iowa 194, the true rule is said to be that in passing upon the guilt or innocence of the accused proof of good character constitutes an ingredient to...