State v. Parkin

• Decision Date: 16 September 1941
• Docket Number: 45492.
• Citation: 299 N.W. 917,230 Iowa 991
• Parties: STATE v. PARKIN.
• Court: Iowa Supreme Court

299 N.W. 917

230 Iowa 991

STATE v. PARKIN.

No. 45492.

Supreme Court of Iowa.

September 16, 1941

Appeal from District Court, Linn County; John T. Moffit, Judge.

Defendant was convicted of driving an automobile while intoxicated. He appeals.

Reversed.

G. P Linville and O. J. Elsenbast, both of Cedar Rapids, for appellant.

John M. Rankin, Atty. Gen., Jens Grothe, Asst. Atty. Gen., and William W. Crissman, Co. Atty., of Cedar Rapids, for appellee.

OLIVER, Justice.

Defendant appeals from his conviction of the crime of operating a motor vehicle while intoxicated. He predicates error upon the definition of " reasonable doubt", as given the jury in Instruction 2, which was, in part, as follows:

" A reasonable doubt is, as the words import, a doubt of guilt which is founded in reason. It must be a real substantial doubt, and not one that is merely fanciful or imaginary. It must not be sought after, nor should the evidence be strained to create or induce it, for when it is such a doubt as the law recognizes it must arise fairly and naturally in the mind, upon a full consideration of all the facts and circumstances shown in evidence in the case."

Appellant contends this definition was erroneous because it failed to state that a reasonable doubt may be predicated upon lack or want of evidence. Upon this proposition our holdings have not been entirely uniform. In State v. Smith, 192 Iowa 218, 237, 180 N.W. 4, 12, 193 N.W. 181, 189, an instruction defining reasonable doubt as " * * * doubt growing out of the unsatisfactory nature of the evidence in the case, * * *," was disapproved as excluding all reasonable doubts that may arise from the lack or want of evidence. This was also the holding in State v. Smith, 194 Iowa 639 646, 190 N.W. 27, 30, in which the jury was charged that a reasonable doubt must arise from a consideration " of all the evidence in the case."

The decision in State v. Tonn, 195 Iowa 94, 112, 191 N.W. 530, 538, sets out a definition of reasonable doubt, in language almost identical to that in the case at bar. This was disapproved although held not to constitute reversible error. State v. Flory, 198 Iowa 75, 81, 199 N.W. 303, 306; State v. Burris, 198 Iowa 1156, 1163, 198 N.W. 82, 85; and State v. Tennant, 204 Iowa 130, 132, 214 N.W. 708, 709, criticized instructions which omitted " want of evidence" but did not hold this to be reversible error.

But in State v. Ritchie, 196 Iowa 352, 362, 190 N.W. 943, 947, it was said the distinction between the two forms of instruction made in State v. Smith, supra, is somewhat overrefined and shadowy and that such an instruction does not constitute reversible error. State v. Bogossian, 198 Iowa 972, 975, 200 N.W. 586, 587, states, " This ground of reversal was completely negatived by us in the recent case of State v. Ritchie, * * *." State v. Boyd, 199 Iowa 1206, 200 N.W. 205, and State v. Gardiner, 205 Iowa 30, 36, 215 N.W. 758, 760, approved a definition of reasonable doubt as one which may arise from a consideration of the whole case, as including a consideration of lack of evidence.

Subsequently, in State v. Anderson, 209 Iowa 510, 228 N.W. 353, 356, 67 A.L.R. 1366, the court, after discussing the cases of State v. Smith, supra, and supporting cases, definitely adopted and extended the rule enunciated or suggested therein, saying:

" * * * We recognize * * * that a reasonable doubt is not necessarily one that arises from a consideration of the facts and circumstances as shown in evidence in the case, and that a reasonable doubt, as a general rule, arises from a lack or want of evidence. * * * It was the right of the appellant to have a correct instruction given upon the subject of reasonable doubt, one which did not exclude the element of lack or want of evidence. * * *, We have repeatedly thrown out the warning, which appears to be unheeded. We can no longer refrain from reversing."

This case was followed by State v. Love, 210 Iowa 741, 231 N.W. 392, and State v. Grattan, 218 Iowa 889, 256 N.W. 273, in each of which the failure to include lack of evidence in the instruction on reasonable doubt was held to be reversible error. Therefore, this appears to be the rule now in effect in this jurisdiction and such of the earlier holdings as do not accord therewith are no longer controlling.

However the State contends the error in Instruction 2 is cured by Instruction 11, in which the jury is cautioned not to consider evidence which has been ruled out or rejected; " but, take into...