State v. King

• Decision Date: 16 June 1942
• Docket Number: 45944.
• Parties: STATE v. KING.
• Court: Iowa Supreme Court

4 N.W.2d 244

232 Iowa 16

STATE v. KING.

No. 45944.

Supreme Court of Iowa

June 16, 1942

Appeal from District Court, Dallas County; Norman R. Hays Judge.

X C. Nady and Ralph H. Munro, both of Fairfield, for appellant.

John M. Rankin, Atty. Gen., Jens Grothe, Asst. Atty. Gen., and George C. Van Nostrand, Co. Atty., of Fairfield for appellee.

BLISS, Chief Justice.

This appeal is before the court on a clerk's transcript of the record, which was filed January 6, 1942. The appeal was perfected on November 7, 1941. On January 19, 1942, the appellant served notice, under Rule 32 of the court, of his intention to submit the appeal upon a printed abstract and brief and argument. The time within which to file the abstract expired on March 6, 1942. Supreme Court Rule 32; State v. Johns, 224 Iowa 487, 488, 275 N.W. 559, 560; State v. Dunley, 227 Iowa 1085, 1088, 290 N.W 41; State v. Christiansen, 231 Iowa 525, 526, 1 N.W.2d 623 624. The abstract was not served and filed until April 21, 1942. The appellee's motion to strike the abstract because not filed in time, and to submit the appeal on the clerk's transcript was sustained by this court on May 5, 1942. Under Rule 32, appellant's brief and argument was required to be filed at least thirty days before the day assigned for the submission of the cause. That day was the 6th day of May, 1942, on which date the brief and argument was filed. The appeal must, therefore, be submitted on the record as it appears in the clerk's transcript, which Code section 13998 requires the clerk of the district court to file in the office of the clerk of this court, containing a full and perfect transcript of all papers in the case on file in his office. On such an appeal by a defendant, this court is imperatively required by Code section 14010, to examine the record contained in said transcript, and, without regard to technical errors or defects, which do not affect the substantial rights of the parties, to render such a judgment on the record as the law demands. State v. Oge, 227 Iowa 1094, 1096, 290 N.W. 1; State v. McGlasson, 86 Iowa 44, 45, 52 N.W. 226; State v. Dunley, supra; State v. Christiansen, supra.

Defendant's motion for new trial was denied. The first seven grounds thereof are based upon matters which require the examination of the evidential record, which is not before us because of the striking of the abstract. State v. Christiansen, supra. The eighth ground, however, is based upon an exception to instruction 11, given by the court.

In instruction 11, the court after instructing the jurors that they were the sole judges of the credibility of the witnesses, and of the matters which they should consider in weighing the testimony, concluded the instruction with this paragraph, "Carefully weigh, consider and compare all the evidence in the case in the light of reason and common sense, laying aside all bias, prejudice or sympathy you may have, and determine the case solely on the evidence before you and on the law as given you in these instructions." (Italics are ours.)

Defendant's exception is as follows: "Defendant excepts to the giving of Instruction No. 11 for the reason that thereby the Jury was instructed to determine the case solely on the evidence before them and the law as given in these instructions, and the Jury was not told therein that they should consider not only the evidence introduced in said cause, but also the lack of evidence in the case, which instruction was definitely contradictory to any prior statement in said instructions that a reasonable doubt might arise from the lack of evidence in the case, and vitiates any statement in said instructions that lack of evidence might be considered; and they were not permitted to draw any inference from the lack of evidence in said case."

In instruction 10 the court fully and fairly instructed on reasonable doubt, and therein stated, "A reasonable doubt is not a forced or captious doubt, but is one that fairly and naturally arises in the mind from a candid and impartial consideration of all the evidence, or lack of evidence, in a case." (Italics are ours.)

In instruction 5, the court also stated, "The Court has not endeavored to set out all the law to govern you in this case in any one instruction, but the instructions as a whole, when considered and construed together, each instruction in the light of and in harmony with the other instructions, will govern you as the law applicable to the case."

The matter of the failure of the trial court to include in its instructions that a reasonable doubt as to the guilt of the defendant may arise from a lack of evidence, has troubled this court on many occasions, and there is some lack of harmony among its decisions on this question. Uniformly the court has held that the jury should be instructed that a reasonable doubt may arise not only from the evidence introduced, but from a lack of evidence. Where the element of lack of evidence has not been thus mentioned, the court has on several occasions criticized and disapproved the instruction, and has cautioned trial courts against such omissions. In a number of these cases the court has held that the omission was not necessarily prejudicial, and refused to reverse. See State v. Ritchie, 196 Iowa 352, 362, 190 N.W. 943; State v. Tonn, 195 Iowa 94, 112, 113, 191 N.W. 530; State v. Flory, 198 Iowa 75, 81, 82, 199 N.W. 303; State v. Bogossian, 198 Iowa 972, 975, 200 N.W. 586; State v. Burris, 198 Iowa 1156, 1163, 198 N.W. 82; State v. Christensen,205 Iowa 849, 852, 216 N.W. 710; State v. Tennant, 204 Iowa 130, 132, 214 N.W. 708.

In other cases the court has held that an instruction on reasonable doubt which contains the phrase "arising from a consideration of the whole case," includes a consideration of lack of evidence. See State v. Boyd, 199 Iowa 1206, 1207, 200 N.W. 205; State v. Gardiner, 205 Iowa 30, 36, 215 N.W. 758.

In some decisions, however, the court reversed or strongly intimated that the failure to include the element of lack of evidence in an instruction on reasonable doubt, was reversible error. See State v. Smith, 192 Iowa 218, 237, 180 N.W. 4, 193 N.W 181; State v. Smith, 194 Iowa 639, 646, 190 N.W....