State v. Lindsay
| Decision Date | 08 April 1913 |
| Citation | 140 N.W. 903,161 Iowa 39 |
| Parties | STATE OF IOWA, Appellee, v. EARL W. LINDSAY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Jasper District Court--HON. BYRON W. PRESTON, Judge.
DEFENDANT was indicted, tried, and convicted of the crime of rape, and from a sentence for life, appeals. Affirmed.
Affirmed.
M. R Hammer, Jr., and J. M. Parsons, for appellant.
George Cosson, Attorney General, and John Fletcher, Assistant Attorney General, for the State.
OPINION
This is the second time the case has been before us. The opinion on the former appeal will be found in 152 Iowa 403. The facts are quite fully set forth in that opinion, and need not be repeated here. The reversal was for an error in the instructions, and that error was not repeated upon the retrial of the case. The propositions now relied upon are: (1) Error in overruling a challenge to a juror; (2) error in an instruction given by the trial court; (3) misconduct of the bailiff, having the jury in charge, during their deliberations; and (4) insufficiency of the corroborating testimony.
I. The challenge of the juror was based upon his preconceived opinion as to the guilt or innocence of the defendant. The testimony taken on the voir dire does not indicate that the juror had ever formed or expressed an unqualified opinion as to the guilt or innocence of the accused. True, he had read an account of the transaction in the newspapers, and had heard the matter discussed around the town of Newton, and had formed some sort of an opinion as to the guilt or innocence of the defendant. But in response to questions by the court, the juror said:
Q. Did you ever talk with any one who claimed to personally know the facts in the case? A. I couldn't say that I did. Q. It was just general common rumor or talk that you heard; is that all? A. Yes, just discussions. Q. And your idea of it was all they said was true? A. And what I read. Q. You read some in the newspapers? A. Yes, sir. Q. At about the time? A. Yes, sir. Q. Do you know what papers you read it in? A. In the Newton Herald and perhaps the News or Capitol. Q. Do you remember now what you read? A. Well, I couldn't repeat it. Q. You just have a general impression, is that what you mean, as a person would have from regarding the article? A. Yes, sir. Q. Did it make any particular impression on your mind? A. Well, I don't know as I could say; but I think any one reads anything like that has an opinion to a certain extent. Q. What I want to know Mr. Robinson, is-- Of course we want jurors who are entirely impartial between both sides, so they can sit here and hear this testimony, and, under the instructions of the court, render a verdict of the court as to the law; do you believe you could do that? A. Yes, sir. Q. Have you any doubt about it in your own mind? A. No, sir. Q. None at all? A. No, sir.
From this examination it clearly appears that the trial court did not abuse its discretion in overruling the challenge. State v. Butler, 155 Iowa 204, 135 N.W. 628; State v. Heft, 155 Iowa 21, 134 N.W. 950; State v. Hassan, 149 Iowa 518, 128 N.W. 960, and cases cited.
II. Although a little out of order, we shall next consider the alleged misconduct of the bailiff. This consists not so much in what was said as in the fact that he had a conversation with some of the jurors, aside from inquiring as to whether or not they had agreed upon a verdict. It is not contended that the bailiff said anything about the merits of the case or about the reason for any disagreement between the jurors. The chief complaint is that the jurors, or some of them, were induced to refrain from asking the court for further instructions.
This excerpt from the record will disclose the basis for the claim of misconduct. One of the jurors was examined. and testified as follows:
Q. Did he [bailiff] say anything to you asking what you boys were making a noise or racket about in the jury room? A. I don't know as he asked in a direct way what we were talking about; we walked along, and I think after we got past the corner there, if I remember right now, we got to talking, and I made the remark, 'A tiresome job,' or something of that kind; and I says, 'It is my first experience, and I hope it will be the last one;' and I says, 'It is something that a man don't have any idea of what he is going into until he gets in there;' I says, 'We had quite a little time of it in there last night;' and I says, 'We was all ignorant as bulls;' that is the very remark I made in regard to the law; and I says, 'There was lots of words we couldn't hardly pronounce in the instructions, let alone understand them;' and I says, 'We had no dictionary to explain them to us, and we thought for a while we would ask for a dictionary;' and then some says, 'We don't know whether that will be granted or not;' and then I says to him, 'I thought for a while that we would ask the judge to explain some of those things, thought we might ask him to explain them to us;' there was no addition to anything, simply an explanation of the instructions he had already given, and, if I remember right, he says, 'You couldn't do that without bringing it into open court,' he says, 'and calling the attorneys on both sides and taking it into open court.' Q. Did he say anything there of there being quite a lot of legal machinery? A. What do you mean by that? Q. Well, quite a job to get them all in? A. I don't remember of him saying anything in regard to that. Q. Did he say anything about that had to be pretty careful with it; that it had been to the Supreme Court once? A. Not to me. Q. Did you hear anything of that kind said? A. No, sir. Q. Well, during any of this talk, did he say anything to you about what you were jangling about? A. No, sir; he never asked me what we were jangling about. Q. You went on and told him all of this stuff you have said? A. Yes, sir. Q. And then he went on and told you what you said he did? A. Yes, sir; he told me just what I mentioned here. Q. Did he say anything about he thought you could agree if you went back and tried, or deliberated upon the case? A. No, sir; the matter was stopped right there, and we didn't talk no more about it on our route. Q. Mr. Ward didn't talk to you any about the merits of the case as to how you should decide it, or anything of that kind? A. No, sir; I should say not. Q. And the jury never made any additional request for instructions? A. No, no.
While the bailiff did not observe the obligations of his oath, we see nothing here prejudicial to the defendant, and his motion for a new trial, based upon misconduct of the bailiff, was properly overruled. State v. Cowan, 74 Iowa 53, 36 N.W. 886; State v. Wart, 51 Iowa 587, 2 N.W. 405.
III. The commission of the crime may be established by the testimony of the prosecutrix herself, but, before there may be a conviction, she must be corroborated by other evidence tending to connect the defendant with the commission of the offense. Code, section 5488. It is contended that there is not sufficient corroborating testimony. We cannot agree with counsel in this contention. There was testimony to the effect that defendant was seen driving away, from near the place where the crime was committed at a rapid rate of speed; that no one else was present who could have committed the offense; that there were automobile tracks leading toward the highway from the place where prosecutrix said that defendant stopped his machine; that defendant had the opportunity for committing the crime; and that this opportunity was of his own making and some other circumstances more or less controlling, but still pointing out the defendant as the guilty man. These were sufficient to take the case to the jury. State v. McGhuey, 153 Iowa 308, 133 N.W. 678; State v. Waters, 132 Iowa 481, 109 N.W. 1013; State v. Crouch, 130 Iowa 478, 107 N.W. 173; State v. Norris, 127 Iowa 683, 104 N.W. 282; State v. Stevens, 133 Iowa 684, 110 N.W. 1037; State v. Clough, 111 Iowa 714, 83 N.W. 727; State v. Ralston, 139 Iowa 44, 116 N.W. 1058; State v. Bricker, 135 Iowa 343, 112 N.W. 645.
IV. The only serious proposition in the case relates to one of the instructions given by the trial court, reading as follows:
The term 'a reasonable doubt,' as used in these instructions, means what the words imply; a doubt founded in reason. It does not mean a captious, strained, or unnatural doubt, nor one raised by some forced or unnatural meaning given to the evidence, or one which is manufactured from sympathy for a defendant, or to excuse the acquittal of one of whose guilt there is no reasonable doubt; but it means a doubt which, without being sought after, fairly and naturally arises in the mind, after a fair and candid consideration of all the evidence in the case, both for the state and for the defendant. If, after such consideration, the minds and consciences of the jurors are not firmly and abidingly satisfied of the defendant's guilt, the doubt is a reasonable one, and you should acquit. The state, however, is not required to prove the defendant's guilt beyond all doubt; that is, absolute certainty is not required. Moral certainty is all the law demands; such certainty as you would act upon in the graver and more important affairs of life.
The italicized portions of this instruction are complained of, and it must be conceded that there are many cases holding such an instruction erroneous. See, among others, People v. Bemmerly, 87 Cal. 117 (25 P. 266); Lovett v. State, 30 Fla. 142 (11 So. 550, 17 L. R A. 705); Jane v. Commonwealth, 59 Ky. 33; State v. Oscar, 52 N.C. 305; Bradley v. State, 31 Ind. 492; Leonard v. Territory, 2 Wash. Terr. 381 (7 P. 872). But quite as many cases hold such an...
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