State v. Brodie

• Decision Date: 20 November 1928
• Docket Number: 39214
• Citation: 222 N.W. 23,206 Iowa 1340
• Parties: STATE OF IOWA, Appellee, v. WILLIAM C. BRODIE, Appellant
• Court: Iowa Supreme Court

222 N.W. 23

206 Iowa 1340

STATE OF IOWA, Appellee, v. WILLIAM C. BRODIE, Appellant

No. 39214

Supreme Court of Iowa, Des Moines

November 20, 1928

Appeal from Polk District Court.--JOSEPH E. MEYER, Judge.

This was a prosecution for child desertion. A verdict of guilty was returned by the jury, and the defendant appeals.--Reversed and remanded.

Reversed and remanded.

Volney Diltz, for appellant.

John Fletcher, Attorney-general, C. S. Missildine, County Attorney, and Carl Burkman, Assistant County Attorney, for appellee.

KINDIG J. STEVENS, C. J., and EVANS, FAVILLE, and WAGNER, JJ concur.

OPINION

KINDIG, J.

The period of desertion covered by the indictment extended from the 21st day of October, 1926, to January 14, 1927. Rebecca Brodie, six years of age, is the child which the State charges was neglected by the defendant. She is the daughter of the defendant and his former wife, Cecelia Brodie. On October 23, 1921, the father and mother were married, and afterwards divorced, March 7, 1924, at which time the mother was awarded custody of Rebecca, and given alimony for the support of the minor daughter.

It is the contention of the State that, during the interim named in the indictment, the defendant contributed but a small sum for the baby's care and keep. Controversy arises between the parties as to the exact amount. In all events, according to the prosecution, there was not enough to maintain the daughter. Her sustenance was obtained through the mother's employment at a wage of from $ 6.00 to $ 10.00 per week. Added to this there were certain contributions made by Mrs. Brodie's relatives.

Defendant's excuse for not having contributed more was his physical incapacity and inability to obtain work. He states that he had fallen arches "to the third degree," and because thereof was unable to stand upon his feet. Furthermore, it is his claim that, prior to his marriage, he suffered a fracture of the skull, which now causes dizziness and fainting spells. Hard labor aggravates this condition, he insists, so that it has been impossible for him to obtain employment where he could perform the requirements thereof while sitting down. Also, defendant declares that his father and brother offered a home to both the child and its mother.

Many assignments of error are made. We have considered them all and find it unnecessary to further discuss but two of them. These relate to the court's instructions to the jury.

I. Number 7 thereof is as follows:

"Therefore, if you find from the evidence, beyond a reasonable doubt, that the defendant neglected to furnish his minor child necessary and proper food, clothing, and shelter, it is then incumbent upon the defendant to show, by a preponderance or greater weight of evidence, that such neglect was not willful."

Objection to that charge is founded upon the thought that it places a burden of proof upon the defendant which, under the law, he is not required to assume. By previous paragraphs, the jury were told that the burden was upon the State to prove the defendant guilty beyond all reasonable doubt. Nevertheless, the instruction in question is inconsistent therewith, and modifies those general statements to the extent indicated in the quotation. Under the law of this state, the defendant in the case at bar was at no time burdened with the duty of proving himself innocent, nor was it necessary for him to show that his acts relating to the child's support, or lack thereof, were not willful. Section 13235 of the 1927 Code provides:

"Proof of the desertion of wife, child, or children in destitute or necessitous circumstances or of neglect to furnish such wife, child, or children necessary and proper food, clothing, or shelter, shall be prima-facie evidence that such desertion or neglect was willful."

That legislation, however, does not cast the burden of proof upon the defendant, but at all times requires the State to sustain guilt beyond a reasonable doubt. However, in meeting this demand the State has a right to take advantage of the "prima-facie evidence" furnished by Section 13235, supra. To put the idea in another way, it was the duty of the jury to take into consideration the "prima-facie evidence" above named, excuses and explanations, if any, offered by the defendant, and all other testimony admitted in evidence, as well as the lack thereof, in determining whether or not there was guilt beyond a reasonable doubt. See State v. Fortune, 196 Iowa 995, 195 N.W. 740, and State v. Jackson, 205 Iowa 592, 218 N.W. 273.

This pronouncement is not in conflict with State v. Hill, 161 Iowa 279, 142 N.W. 231, because in that case the discussion indulged in by the court relating to the burden of proof in reference to the defendant's "inability to furnish the support" was called forth by an assignment of error growing out of the failure to instruct on such lack of ability. A special charge relating to such inability was not there deemed necessary by us until the defendant furnished some proof in that respect to which it could relate. Such, however, is not the problem now presented here.

An analogy for the theory of this discussion may be found in our previous cases relating to the doctrine regarding unexplained possession of property recently stolen in larceny, burglary, and breaking and entering cases. A consideration of a few representative decisions with reference to that principle will suffice. State v. Brady, 121 Iowa 561, 97 N.W. 62, contains this language:

"The law does not attach a 'presumption of guilt' to any given circumstance, nor does it require the accused to 'overcome the presumption thereby raised,' in order to be entitled to an acquittal. What the law does say is that the fact of possession is evidence of guilt upon which a conviction may properly be returned, unless the other facts or circumstance developed be such that, notwithstanding the recent possession, the jury still entertains a reasonable doubt of the defendant's participation in the crime. It is in this sense that the words 'presumption' and 'prima-facie evidence' [the italics are ours] must be understood when employed in this connection. * * * In 1 McClain's Criminal Law, Section 617, it is said that the rule here stated is 'sounder in principle than that which requires the defendant in some form to overcome the presumption and establish his innocence.' That the word 'presumption,' as used in this class of cases, indicates no more than that the fact of possession is sufficient evidence to sustain a finding of guilt, is shown by the language employed in the opinion of this court in State v. Kelly, 57 Iowa 644, 11 N.W. 635 * * *."

State v. Harris, 194 Iowa 1304, 191 N.W. 83, consistently says:

"It is the rule in a prosecution for larceny that proof of defendant's possession of recently stolen property, where such possession is unexplained, constitutes sufficient prima-facie evidence [the italics are ours] to warrant the jury in finding the defendant guilty of the larceny. It is also true that, where it appears that such larceny must have been committed in connection with a burglary or a...