State v. Leete
| Decision Date | 14 October 1919 |
| Docket Number | 33139 |
| Citation | 174 N.W. 253,187 Iowa 305 |
| Parties | STATE OF IOWA, Appellee, v. CLEO LEETE, Appellant |
| Court | Iowa Supreme Court |
Appeal from Woodbury District Court.--GEORGE JEPSON, Judge.
DEFENDANT was convicted in the court below of the crime of robbery, and appeals from a judgment sentencing him to the Reformatory at Anamosa.
Affirmed.
H. W Brackney and George W. Finch, for appellant.
O. T Naglestad and George Gorder, for appellee.
I.
The evidence shows that the defendant, in company with Harry Newcomber, on the night of January 19, 1919, went to the home of Frank Watkins, in Sioux City, Iowa, apparently for the purpose of buying liquor; but, shortly after entering the house, Newcomber struck Watkins on the back of the head with a club, whereupon the defendant pulled a gun, shot once at the floor, and compelled Watkins to put up his hands, while Newcomber took a sum of money from his pockets.
The first contention of appellant is that the verdict of the jury is without support in the evidence. The testimony of Watkins upon the trial was positive, and sufficient, if believed by the jury, to justify a verdict of guilty. Watkins was also an "undesirable citizen," but the jury evidently believed from his testimony, together with the circumstances and subsequent conduct of the defendant and his companion, as shown by the evidence, that the defendant was guilty.
II. All other grounds relied upon for reversal are based upon alleged errors of the court in its instructions to the jury. The defendant undertook to establish an alibi. The court instructed the jury upon this question that the defense of alibi is as legitimate and proper as any other defense, but that the burden of proving the same, by a preponderance of the evidence, rested upon the defendant, and that, if such defense was thus established, it would be sufficient. In a subsequent paragraph of the same instruction, the court told the jury that, if it found "from the evidence that, at the time of the transaction in question, by which the State relies to establish the connection of this defendant with and his participation in the robbery charged in the indictment he was at another place, and was so far away he could not have been connected with or participated in the same, and if, from all the evidence, including that offered in support of this affirmative defense, you entertain a reasonable doubt as to the guilt of the defendant, then you will acquit." The objection to the instruction is in the use of the word "and," which is italicized above, instead of the word "or." The thought of counsel is that the instruction does not clearly apprise the jury that an alibi, if proven, constitutes a perfect defense, and that, by the use of the word "and" in the portion of the instruction quoted, the jury may have understood that, although an alibi was proven, the defendant could not be acquitted unless the evidence thereof, together with all of the testimony introduced upon the trial, created a reasonable doubt in the minds of the jurors of the defendant's guilt. The portion of the instruction complained of was certainly not prejudicial to the defendant. In the preceding paragraph of the same instruction, the court clearly stated that the defense of alibi was as proper and legitimate as any other defense, but that the burden rested upon the defendant to establish the same by the preponderance or greater weight of the evidence. The court might, however, well have added to this part of the instruction that, if the defense was established, the defendant should be acquitted; but we think the language used must have been understood by the jury that an acquittal should follow if the jury found that an alibi was...
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