State v. Richardson

• Citation: 137 Iowa 591,115 N.W. 220
• Parties: STATE v. RICHARDSON.
• Decision Date: 10 March 1908
• Court: United States State Supreme Court of Iowa

137 Iowa 591

115 N.W. 220

STATE

v.RICHARDSON.

Supreme Court of Iowa.

March 10, 1908.

Appeal from District Court, Mitchell County; Clifford P. Smith, Judge.

The defendant was convicted of having committed incest, and appeals. Affirmed.Geo. E. Marsh, C. D. Ellis, and Roberts & Warner, for appellant.

H. W. Byers, Atty. Gen., and C. W. Lyons, Asst. Atty. Gen., for the State.

LADD, C. J.

The facts sufficiently appear in State v. Judd, 132 Iowa, 296, 109 N. W. 892, and no more need be added than is necessary to dispose of the points raised on this appeal. The criticism of the sixth paragraph of the charge is that, in directing the consideration of the evidence “tending to prove the conduct and disposition” of the parties towards each other, the court confused and misled the jury by adding, “And the evidence to disprove the same.” Up to this time it has been supposed that after mentioning a proposition, stating it conversely would tend to guard the jury against oversight or being misled, and we have not been persuaded to the contrary by the argument in this case. The instruction did no more than advise them to consider the evidence pro and con, and was correct. The eighth instruction was not open to criticism.

2. There was evidence tending to show that defendant was elsewhere when the offense was claimed to have been committed, and with reference thereto the court instructed that “the burden of proof is on the defendant to prove this defense by a preponderance of evidence. But if, after duly considering all the evidence received at this trial (including the evidence tending to prove or to disprove the alibi), you have a reasonable doubt of the defendant being proved to be guilty, you must acquit him.” It is conceded that instructions in substantially the same language repeatedly have been approved by this court. See State v. Worthen, 124 Iowa, 408, 100 N. W. 330;State v. Hamilton, 57 Iowa, 596, 11 N. W. 5;State v. Hathaway, 100 Iowa, 225, 69 N. W. 449;State v. McGarry, 111 Iowa, 709, 83 N. W. 718;State v. Thomas (Iowa) 109 N. W. 900;State v. Powell (Iowa) 113 N. W. 761. But it is said that it is erroneous (1) in casting the burden of proof on the defendant; and (2) in omitting definitions of the phrases “burden of proof” and “preponderance of evidence.” The term “burden of proof” is but a figure of speech in common use with a well-defined meaning. In re Barber's Estate, 63 Conn. 393, 27 Atl. 973, 22 L. R. A. 90. In the connection employed the jury could not have misunderstood what was meant. The phrase “preponderance of evidence” has a popular as well as technical meaning, not differing materially, and the jury will gather the import of the expression always unless misled by the context. Jones v. Durham, 94 Mo. App. 51, 67 S. W. 976. It is at least doubtful whether attempts to explain its meaning do not tend more to confusion than to a clear understanding of what is intended. Endowment Rank of K. P. v. Steele, 108 Tenn. 624, 69 S. W. 336. The jurors are presumed to be familiar with the English language, and ordinarily the court is not required to define phrases having a well-understood meaning and in common use. There was nothing in the context to obscure the meaning of these, and it was not error to omit specifically defining them. The rule with reference to the burden of proof has been approved too often to require further vindication.

3. The jurors retired for deliberation May 10, 1907, at 4:15 o'clock p. m. On the following morning, at 9:10 o'clock a. m., they were called into court, and, at their request, some evidence read to them by the official stenographer. The court then sua sponte gave them an instruction to the effect that the law required an unanimous verdict, that, while this verdict must be the conclusion of each juror and not a mere acquiescence in that of other jurors, to reach an agreement, it was necessary for “all the jurors to examine the issues submitted to them with candor and a proper regard and deference to the opinion of each other. A proper regard for the judgment of other men will greatly aid us in forming our own”--that the case must be decided some time; that the jurors had been selected in the same manner any future jury would be, and there was no reason to think a jury better qualified would ever be chosen or more or clearer evidence ever be adduced; that “every juror should listen to the arguments of other jurors with a disposition to be convinced by them, and if any of the jury differ in their views of the evidence from a larger number of their fellow jurors, such difference of opinion should induce the minority to doubt the correctness of their own judgments, and cause them to scrutinize the evidence more closely and to re-examine the grounds of their opinion. Your duty is to decide the issues of fact which have been submitted to you, if you can conscientiously do so. And, in conferring together, you should bear in mind that the jury room is no place for pride of opinion, nor for espousing and maintaining in a spirit of controversy either side...