State v. Schumacher

• Citation: 191 N.W. 870,195 Iowa 276
• Decision Date: 13 February 1923
• Docket Number: 34984
• Parties: STATE OF IOWA, Appellee, v. JOHN SCHUMACHER, Appellant
• Court: United States State Supreme Court of Iowa

191 N.W. 870

195 Iowa 276

STATE OF IOWA, Appellee, v. JOHN SCHUMACHER, Appellant

No. 34984

Supreme Court of Iowa, Des Moines

February 13, 1923

Appeal from Scott District Court.--F. D. LETTS, Judge.

THE indictment charged defendant with the crime of lewd, immoral and lascivious acts with a child. The jury returned a verdict of guilty, and the court entered sentence of imprisonment in the penitentiary for not more than three years, as provided by Section 4938-a, Supplement to the Code, 1913, from which judgment, defendant prosecutes this appeal.--Reversed and remanded.

Reversed and remanded.

Maines & Kelly, for appellant.

Ben J Gibson, Attorney-general, John Fletcher, Assistant Attorney-general, John P. Weir, Walter A. Newport, and John McSwiggin, for appellee.

ARTHUR J. PRESTON, C. J., EVANS and FAVILLE, JJ., concur.

OPINION

ARTHUR, J.

No abstract is filed. We have before us only the clerk's transcript, provided by Code Section 5450, and appellant's brief and argument. Counsel for appellant state:

"This brief and argument is submitted merely as an aid to the court in following out its duties, as prescribed in Code Section 5462."

Error is assigned as to each and every instruction given by the court.

I. Instruction No. 1 reads:

"The indictment in this case charges the defendant with the crime of lewd, immoral, and lascivious acts with a child."

Instruction No. 5 reads:

"The indictment in this case charges, in substance, that the defendant, John Schumacher, on or about February 25, 1922, being then and there over the age of 18 years, did in Scott County, Iowa, willfully, unlawfully, and feloniously commit lewd, immoral, and lascivious acts upon and with the body of one Bernice Glaspell, the said Bernice Glaspell being a female child under the age of 13 years, with intent then and there on the part of said John Schumacher of arousing, appealing to, and gratifying the lust and passions and sexual desires of said John Schumacher."

Exceptions taken to the indictment and the presentation of the indictment to the jury under Instructions No. 5 and No. 1 are, in substance, that the indictment fails to charge the defendant with the crime of lewd, immoral, and lascivious acts with a child, for the reason that the facts constituting such crime are not set out, and that the indictment merely avers such a crime as a conclusion, unsupported by allegations of fact showing what the crime was. The indictment set forth in Instruction 5 is substantially in the language of the statute, and is sufficient, and not vulnerable to the attack made upon it. State v. Kernan, 154 Iowa 672, 135 N.W. 362.

II. Exception is taken to Instruction No. 2 because it states that the guilt of the defendant must be established "beyond a reasonable doubt." Counsel insist that the law demands that the word "all" should be used in place of "a," in stating the proof required. The criticism is hypercritical. The statute relating to and requiring an instruction on reasonable doubt, Code Section 5376, reads:

"Where there is a reasonable doubt of the defendant being proven to be guilty, he is entitled to an acquittal."

It will be observed that the statute uses the article "a," and not the adjective "all." The statute does not demand that the word "all" should be used. We think an instruction using either word conveys the same meaning, and that an instruction using the article "a" would be understood by the jury to mean the same as if the word "all" were used.

III. Instruction No. 10 reads:

"Evidence has been introduced by the defendant for the purpose of showing that, prior to the time of the alleged offense, his general character for morality and chastity was good, and that his general reputation for general moral character and for morality and chastity was good, and that he was, in fact, a man of good morals, and possessed of traits of morality and chastity. Evidence of good character and good reputation in those regards does not have the effect to rebut positive evidence of the commission of the crime. Such evidence was received and should be considered by you as tending to show that a man of such character and reputation as this evidence tends to show the character and reputation of the defendant to be, would not be likely to commit the crime charged. In passing upon the guilt or innocence of the defendant, such evidence of defendant's good character and good reputation should be considered by you without reference to the apparent conclusive or inconclusive character of the other evidence, and it is for you to determine what weight you will give to such evidence of character and reputation."

Exceptions to this instruction, in substance, are that the law is erroneously stated in Paragraph 2, wherein the jury was told that "evidence of good character and good reputation in those regards does not have the effect to rebut positive evidence of the commission of the crime;" and that the above quoted paragraph of the instruction is in direct contradiction of Paragraph 3 of the instruction, which correctly states the law, wherein it is said that "evidence of defendant's good character and good reputation should be considered by you without reference to the apparent conclusive or inconclusive character of the other evidence."

It is urged by counsel that Paragraph 2 of said instruction conflicts with Paragraph 3, and obliterates the force and effect of character evidence introduced in this case. We have not the evidence in the case before us, and no abstract was filed. As an abstract statement of the law, we are constrained to hold that the statement of Paragraph 2 of the instruction, that "evidence of good character and good reputation in those regards does not have the effect to rebut positive evidence of the commission of the crime," is erroneous. The converse of such statement we think would be correct. "Evidence of good character" may have the effect of rebutting positive evidence or circumstantial evidence. The court stated the law correctly in the third paragraph of the...