State v. Davis, 40424.

• Decision Date: 10 April 1931
• Docket Number: No. 40424.,40424.
• Citation: 235 N.W. 759,212 Iowa 131
• Parties: STATE v. DAVIS.
• Court: Iowa Supreme Court

212 Iowa 131

235 N.W. 759

STATE

v.DAVIS.

No. 40424.

Supreme Court of Iowa.

April 10, 1931.

Appeal from District Court, Page County; Earl Peters, Judge.

To an indictment charging him with the crime of bank robbery, the defendant pleaded not guilty. Upon trial had, there was a verdict of guilty and judgment was entered thereon. From this judgment the defendant appeals.

Affirmed.

William P. Welch, of Logan, for appellant.

John Fletcher, Atty. Gen., Neill Garrett, Asst. Atty. Gen., and Paul Millhone, of Clarinda, for the State.

EVANS, J.

The injured party named in the indictment was the Shambaugh Savings Bank, located in Page county. The robbery occurred between 1 and 2 p. m. on November 19, 1929. Four persons participated therein. Four persons were jointly charged therefor in the indictment. These were defendant Davis, Prochaska, Baird, and Rowe. The defendant was awarded a separate trial.

The story of the robbery is very brief. Three men entered the bank and the fourth man remained in an automobile near by. The contention of the state is that Davis, Prochaska, and Rowe entered the bank, each armed with guns, and that Baird occupied the waiting automobile. The robbery was quickly accomplished in the usual way. Three persons were occupied in the bank at the time and were put under the guns of the robbers. The contention for this defendant is that he had nothing to do with the robbery; that he was not present thereat; that he was in fact at that very time in New York City, where he had arrived on November 15. The fact controversy concentrates therefore upon the identity of Davis as one of the robbers. The occupants of the bank were Denny and wife and Pinkerton. Denny and Pinkerton each testified that he recognized Davis as one of the men. The testimony of the state tended to show that the four men here named left Omaha on the night of the 18th and that they arrived at Shambaugh in the early morning. At about 9 a. m. Prochaska entered the bank and asked for change of currency. He was advised that the vault was not yet open. Thereupon he returned to his companions and they left the town; and returned again about 1 p. m. In the morning they were served at the restaurant of the witness Jenkins. Jenkins identified Davis as one of the men thus served. Pierson, a mail carrier, identified defendant as one of the group. Prochaska, one of the indicted defendants, was used by the state as a witness. He testified to the identity of each of the four persons engaged in the robbery and that Davis was one of them. He was brought from the penitentiary of Nebraska, to which he had been committed for the crime of burglary committed by him in December following the bank robbery. The defendant was arrested in New York City and delivered to the custody of the witness Ray Scott, as agent for the state of Iowa. Scott testified to conversations with the defendant on his return trip from New York to the effect that he did participate in the robbery and that he did not propose to fight the accusation. Denny testified to similar statements made to him by the defendant after his return from New York City. The witness Fred Johnson, another state agent, in whose custody the defendant was taken from Des Moines to Clarinda, testified that the defendant told him that he (the defendant) was one of the three persons who entered the bank; also, that he (the defendant) knew where some of the bonds were. All the foregoing evidence was categorically denied by the defendant as a witness. His plea of alibi was supported by the testimony of his wife. Such is the state of the evidence.

[1] It is contended in argument that the evidence for the state was uncertain; that much of it was rendered nugatory by cross–examination; and that on the whole it was insufficient to warrant a verdict of guilty. We think the evidence was abundant to go to the jury, and that the attack upon its sufficiency does not merit a more detailed discussion thereof.

We pass therefore to a consideration of the legal questions raised by counsel. These objections in the main are directed to instructions 5, 11, 12, and 13.

[2] I. Complaint is made of instruction 5, because in defining a reasonable doubt the court failed to instruct the jury properly as to the effect of a lack of evidence. This instruction was as follows:

“A doubt, to be reasonable, must be one that arises from a consideration of all of the evidence in the case, or from the lack of evidence upon some material point in the case. It is not an imaginary or captious doubt, but one that arises fairly and naturally in your minds from a consideration of the evidence, and one that leads you to hesitate in reaching the conclusion of the defendant's guilt.”

It will be noted that in the first sentence above quoted the court did instruct on the subject of “lack of evidence.” The complaint of the appellant is that the court failed to repeat in the second sentence his previous reference to such subject. The two sentences are consistent and are mutually related. It was not necessary that the second...