State v. Bosworth

• Decision Date: 14 May 1915
• Docket Number: No. 30322.,30322.
• Parties: STATE v. BOSWORTH.
• Court: Iowa Supreme Court

170 Iowa 329

152 N.W. 581

STATE

v.BOSWORTH.

No. 30322.

Supreme Court of Iowa.

May 14, 1915.

Appeal from District Court, Mahaska County; John F. Talbott, Judge.

Indictment charging defendant with maliciously and unlawfully injuring, removing, and destroying a street car belonging to an electric railway, to wit, the Oskaloosa Traction & Light Company, of Oskaloosa, Iowa. Defendant was convicted and appeals. Reversed and remanded.Davis & Orvis, of Oskaloosa, for appellant.

D. W. Hamilton, of Sigourney, John McCutchen, of Oskaloosa, George Cosson, Atty. Gen., and Wiley S. Rankin, Asst. Atty. Gen., for the State.

SALINGER, J.

[1] I. Error is assigned on the overruling of defendant's motion to direct a verdict. The motion was made at the close of the testimony for the state, and after its overruling the defendant introduced his testimony. The motion was never renewed. In this state of the record, we cannot review the assignment. This is so despite that the motion for new trial asserts the motion to direct verdict should have been sustained.

[2] II. The acts upon which the indictment was based were committed between 11:15 at night and midnight. Earlier the same evening the defendant was about town and attended the theater. He arrived at the scene of the alleged crime about 11:15. There is testimony that he then participated. On the other hand, he contends that he remained on the sidewalk, some 25 feet from the participants. Over his objection, the court charged (instruction No. 6) that the defense of alibi was being made, and that defendant claims to have been so far away that he could not, with ordinary exertion, have been present at the commission of the crime charged. The burden is put on defendant to prove this defense, with the proviso that if the evidence on the alibi, with all the other evidence, raises a reasonable doubt, there should be an acquittal, and the jury is told that this is a defense which is easily manufactured, and should therefore be scanned with care and caution. Defendant objected, in effect, that he claims no alibi, but asserts that, though where he could have done what is charged, he did not. He urges that while the instruction may be abstractly correct, it has no basis in the record, and was prejudicial, and that the underscoring therein of the word “alibi” was an additional error, as well as an aggravation of the error committed in giving the instruction at all. The state responds that the sole objection is to the instruction as a whole; that it is not well taken because defendant concedes the instruction to be applicable to the evidence concerning doings before 11 o'clock; that by putting in such evidence he himself injected alibi into the case; and that against this, it is not controlling what label the defendant puts on the defense which he did make, nor what he claims for it. It is further said that the instruction given is uniformly approved by many of our decisions, and that there is nothing irregular about it, unless it be the underscoring of the word “alibi,” and that, if the instruction is warranted, the underscoring of this word cannot be error.

[3][4] (2) Proceeding by way of elimination, we have to say we find nothing in the record to sustain the claim that defendant consented to the giving of the instruction so far as it relates to earlier than 11 o'clock. He objected to its giving on the ground that he was not claiming an alibi. This objection is in toto and upon a ground which eliminates the theory that the instruction is conceded to be applicable to some phase of the evidence. The testimony covering the time up to 11 o'clock is relevant to defendant's denial that he was in a conspiracy and interested in what his co-conspirators were doing in his absence, and, as such testimony had bearing upon something other than alibi, the naked fact of its presentment does not create a volunteer issue, nor operate as a consent to instruct upon alibi. Abstractly it is true that what defendant claims his defense is does not settle what defense he actually interposes. Yet the fact that at the time the instruction was given he asked that it be withdrawn, on the ground that it presented a defense not claimed by him, has the twofold effect of bearing upon what defense was actually interposed by him, and on whether he volunteered an alibi.

[5] We agree that if there was warrant for instructing on alibi, the underscoring of the word “alibi” is of no consequence, and agree that the charge was one of approved form. But is it material that such instruction is in approved form? If there was no evidence to base same it cannot be defended though it was in proper form. We thus reach the real question on this head, whether there was any evidence which warranted the giving of this charge, and whether, if it was unwarranted by the record, its giving was prejudicial.

(3) The theory of the state is that as defendant claims he “was 25 feet and no closer,” he so asserted that it was “physically impossible for him to have participated in the identical crime from his location;” that this presents the defense of alibi as much as though he had remained 500 feet away; that the size of the distance, if not wholly immaterial, is not controlling, and that the following authorities sustain this contention:

2 Am. & Eng. Enc. of Law, page 53, and footnote, states, in effect, that alibi “literally” means “elsewhere,” and that the defendant or person accused was in a place which “precludes the idea that he was the perpetrator.” The cases cited in support of this text are: Hardin's Case, 46 Iowa, 628, 26 Am. Rep. 174, in which it is charged there must be proof of where defendant claims to have been at the time the crime was committed, all the time during its commission, or at such time that he could not, with any ordinary exertion, have reached the place of committing. The correctness of this is not passed upon, and the decision turns entirely upon “the degree of proof of an alibi which must be produced to entitle defendant to an acquittal,” and the requirement that the jury should be “fully satisfied by a preponderance that these defendants were situated as is above stated,” is held to demand too great a degree of proof. In Fry's Case, 67 Iowa, 478, 25 N. W. 738, there is again no decision on what is the law concerning distance. The only point ruled is that the degree of proof is correctly stated. Maher's Case, 74 Iowa, 77, 37 N. W. 2, also holds that the charge on degree of proof is correctly stated. For the rest, it is a decision that the court has discretion as to order of proof on alibi.

Aside from this support for this text, the state cites:

Child's Case, 40 Kan. 482, 20 Pac. 275, wherein it was charged the proof must show that participation was “practically improbable or impossible.” Whether this is correct is not touched. And the decision is merely that it was error to charge that defendant had the burden of proof on this.

Peyton's Case, 54 Neb. 190, 74 N. W. 597, holds that while being at some distance from the alleged place of commitment is “necessarily elemental” in proof of alibi, yet “the distance disclosed by the evidence is not always an absolutely controlling fact;” that the distance itself bears merely on the strength of the defense, and it is error to require that “the distance must be such as to preclude any possibility of a participation in the crime”--all of which means merely that the jury must sustain the alibi if it believes defendant was so far away as to make participation impossible, and may sustain it though the evidence that the distance was so great as this is less conclusive, and is such as to leave the impossibility of participation a debatable question.

In Gulliver's Case, 142 N. W. 948, an instruction does charge that the testimony in support of an alibi must show defendant was so far away that he could not be present at the scene of the crime. But the only thing decided is that instructing that such testimony “is entitled to weight” constitutes a departure from the correct rule, which is that, instead of being merely entitled to weight, such testimony may work an acquittal if, in connection with all the testimony, it raises a reasonable doubt. In other words, the case assumes that what is required to be proven is correctly stated, criticizes the instruction because it, standing alone, fails to make clear what consideration such testimony is entitled to, and decides also that this fault is cured by other parts of the charge.

The utmost that can be claimed for all this is that one showing as to distance may settle conclusively defendant could not have participated; another may establish conclusively that the distance shown is insufficient to sustain an alibi; and, third, that the showing as to distance may be such as to leave it a question for the jury whether an alibi is made out. We are therefore brought to deal with the question at bar unaffected by the citations made for the state, and to consider its contention in the light of adjudications other than the ones cited by it, and in the light of reason.

(4) It is urged upon us that while defendant does not deny he was near the scene of action at the identical time when the offense occurred, “what he does claim is he was 25 feet away and no closer;” that his claim of a “physical impossibility” to have reached the place of commission refers to “the possibility of reaching out and touching the car from the identical place where the defendant was standing.” It is illustrated that one might see something occur while three blocks distant, or see an occurrence while standing but a few feet away, “and the elements of alibi involved would be the same”; that one might be in a room adjoining, with the door closed, and at a distance of but a few inches, and that “while in both of these instances the physical impossibility would vary,” it is the claim of the state “that the defense would be alibi because at the identical moment...