State v. Derry
| Decision Date | 21 June 1926 |
| Docket Number | 36840 |
| Citation | 209 N.W. 514,202 Iowa 352 |
| Parties | STATE OF IOWA, Appellee, v. OSKER DERRY, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED OCTOBER 4, 1926.
Appeal from Marion District Court.--W. G. VANDER PLOEG, Judge.
Defendant was indicted and convicted for the crime of lewd and lascivious acts, as defined and made punishable by Section 13184, Code of 1924. From the judgment entered on the verdict, he appeals.
Affirmed.
Johnson & Teter, for appellant.
Ben J Gibson, Attorney-general, Herbert A. Huff, Assistant Attorney-general, J. B. Hockersmith, County Attorney, and Norman R. Hays, for appellee.
DE GRAFF, C. J.
The instant indictment is based on a statute which, in substance, provides that "any person over 18 years of age who shall willfully commit any lewd, immoral, or lascivious act in the presence, or upon or with the body or any part or member thereof, of a child of the age of 16 years or under, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person, or of such child, or of corrupting the morals of such child, shall be punished" as provided in said statute. Section 13184, Code of 1924.
It is shown that the defendant is more than 18 years of age, and the girl involved was about 13 years old.
I. There is no imperative reason to detail the record facts in this opinion. We feel that this is true although the primary contention of the appellant involves the sufficiency of the evidence to sustain the verdict. It is sufficient to state that, with respect to the lascivious acts charged, two girls affirm, and the defendant denies. It is true, as claimed by appellant, that a verdict of guilty in a criminal case will not be permitted to stand when it is against the clear weight of the evidence. It is also true, as claimed by appellee, that this court will not interfere with the verdict of the jury when there is a material conflict in the evidence. This court will not substitute its conclusions upon the facts for those of a jury that has returned a verdict of guilty, unless it appears from the whole record that there is such a want of support for the finding as will require a reversal. State v. Hessenius, 165 Iowa 415, 146 N.W. 58.
We discover nothing in the record which tends to indicate that the verdict is the result of passion or prejudice. It is no fault of the administration of criminal justice that an act of the character charged is repulsive to a decent-minded person. The nature of the offense does not raise the inference that the evidence inflamed the minds of the jury or caused reason to leave its throne.
The trial court guarded the interests and rights of this defendant by an instruction to the jury in which it is said that, although the good of society requires that crime be surely and promptly punished, it is equally important that the innocent be protected, and, "if you entertain a reasonable doubt as to the guilt of the defendant, you should not for a moment allow any consideration or motive to deter you from acquitting him; that you should lay aside all feeling of bias, if any you have, and bring to the consideration of all the evidence in the case your cool, deliberate, and dispassionate judgment."
Absolute certainty of the guilt of the defendant is not required in any criminal case; and, if all the evidence, when fairly considered, justifies the verdict returned, it is not our function to interfere.
There was a direct conflict in the testimony. The credibility of the witnesses was for the jury. As said in Graham v. Chicago & N.W. R. Co., 143 Iowa 604, 119 N.W. 708:
"The testimony of a witness may be so impossible and absurd and self-contradictory that it should be deemed a nullity by the court."
This is, in effect, a limitation on the jury to determine and foreclose the credibility of a witness, but it finds no application to the case at bar. We deem further opinion unnecessary on the first proposition of appellant.
II. Complaint is lodged against several instructions given by the trial court, but argument is made to only two of the instructions. Under Rule 30 of this court, any error relied upon for reversal not argued in the argument in chief shall be deemed to have been waived. Rules are made for observance, and we therefore give attention to the errors assigned which are argued.
The cautionary instruction heretofore mentioned, by which the rights of the defendant were attempted to be safeguarded, is challenged. We read the argument of appellant in vain to discover a basis for legal criticism. It is urged that the quoted instruction "added fuel to the flame and that there is no evidence in the record upon which to base any such instruction." This objection is purely...
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