State v. Stout

• Decision Date: 10 January 1956
• Docket Number: No. 48711,48711
• Citation: 247 Iowa 453,74 N.W.2d 208
• Parties: STATE of Iowa, Plaintiff-Appellee, v. Orval Dale STOUT, Defendant-Appellant.
• Court: Iowa Supreme Court

Page 208

74 N.W.2d 208

247 Iowa 453

STATE of Iowa, Plaintiff-Appellee, v. Orval Dale STOUT, Defendant-Appellant.

No. 48711.

Supreme Court of Iowa.

Jan. 10, 1956.

Verne Lawyer, Robert D. Ray, and Don Hise, Des Moines, for appellant.

Dayton Countryman, Atty. Gen., of Iowa, Raphael R. R. Dvorak, Asst. Atty. Gen., M. C. Herrick, County Attorney of Warren County, Indianola, for appellee.

BLISS, Justice.

On this appeal, appellant bases his right to a reversal of the judgment solely upon the commission of errors by the trial court in giving certain instructions to the jury. Four of the court's instructions are challenged.

I. Appellant contends that the court committed reversible error in giving Instruction No. I, towit: 'You are to take the facts as the same have been established by the proof, together with the lack of testimony, if any, and the fair and reasonable inferences which may be drawn therefrom, and the law as given you in charge by the Court in these instructions, and therefrom determine whether the defendant is or is not guilty, and without regard to consequences, return your verdict accordingly. You are the sole judges of the facts in the case, and the Court instructs you as to the law. The Court has not, however, attempted nor intended to embody in any one instruction all of the law applicable to the case. You are to consider, and to construe together all of the instructions and apply them, as a whole, to the evidence in the case.' (Italics ours)

Appellant's complaint is directed to the words we have italicized. He states: 'This instruction does not limit the lack of testimony to the State, and permits the jury to consider the lack of testimony on the part of the defendant, and draw any inferences therefrom, all to the prejudice of the defendant. It placed a burden upon the defendant which the law does not require him to assume. It is not the law that the defendant in a criminal case must go forward with the burden of proof, and, in effect, this instruction forces the defendant into that position.'

While the reference to lack of testimony is essential in an instruction defining reasonable doubt, its use in Instruction I above was perhaps unfortunate. Lack of evidence may, of course, engender a reasonable doubt; but the use of the phrase in other instructions is ordinarily not to be commended since it may be interpreted as permitting the jury to find a defendant guilty because of such lack of evidence.

However, we do not find reversible error at this point. The jurors were told in the challenged instruction that all the instructions were to be construed together as a whole. This court has so held repeatedly. We cite but a few decisions. State v. Katz, 241 Iowa 115, 120, 40 N.W.2d 41; State v. King, 232 Iowa 16-20, 4 N.W.2d 244; State v. Rutledge, 243 Iowa 179, 47 N.W.2d 251; State v. Davis, 244 Iowa 400, 56 N.W.2d 881. In the preliminary statement of the facts involved in the crime charged, the court told the jury that defendant's plea of not guilty placed upon the State the burden of proving beyond a reasonable doubt each and all of the facts. In Instruction No. 4 the jury was told that defendant was presumed to be innocent and the burden was on the State of overcoming this presumption, by evidence establishing defendant's guilt beyond a reasonable doubt in the minds of the jurors upon consideration of all the evidence in the case or from the lack of evidence on the part of the State. In Instruction No. 6 the Court stated the three essentials of the crime and charged the jury that the burden was upon the State to establish each beyond a reasonable doubt in their minds.

It is not reasonable to believe that the jurors after considering the Court's Instructions as a unit, had any doubt or uncertainty that the burden of proof to establish every element of the offense charged was upon the State. Nor is it reasonable to believe that the jurors thought that the phrase, 'together with lack of testimony', meant such lack or failure on the part of the defendant. The instructions made it clear to the jury that the burden was on the State to produce sufficient testimony to justify a conviction within the law as stated in the Court's charge to the jury.

Instructions to juries concerning 'lack of evidence' have been involved in many appeals to this court, and there has been some lack of harmony in its decisions. A review of them would serve no purpose. But the later decisions in criminal appeals have been consistent in holding that the jury should be instructed to arrive at a verdict from a consideration of all the evidence in the case, or from the lack of evidence on the part of the State. The burden being upon the State to produce sufficient evidence for a verdict of guilty. See State v. Anderson, 209 Iowa 510, 517, 228 N.W. 353, 67 A.L.R. 1366; State v. Parkin, 230 Iowa 991-993, 299 N.W. 917; State v. Love, 210 Iowa 741-743, 231 N.W. 392; State v. Sauerbry, 233 Iowa 1076, 1083-1085, 10 N.W.2d 544; State v. Billberg, 229 Iowa 1208, 1222, 296 N.W. 396; State v. King, 232 Iowa 16-20, 4 N.W.2d 244, supra.

Appellant cites but two authorities in support of his contention, State v. Sauerbry, 233 Iowa 1076, 1083-1085, 10 N.W.2d 544, supra, which is adverse to him rather than favorable, and State v. Matthes, 210 Iowa 178, 230 N.W. 522, which is not a pertinent authority here, because of the particular wording of the instruction in that case. We so held in State v. Doss, Iowa, 67 N.W.2d 451-452. In the latter case the instruction attacked was much like the instruction in the present appeal.

Assigned error No. I is without merit.

II. Appellant assigns error in the giving of Instruction No. 6, towit:

'A person is in an intoxicated condition within the meaning of the statute and these instructions, when, by the use of intoxicating liquors, including beer, his faculties have been overcome or affected, and he is unable to exercise proper control over his actions, or his judgment is impaired. It does not necessarily mean that he must be in a stupor or unable at all to control his actions, but if by reason of the use of alcoholic liquors, including beer, he has lost control in any manner or to any extent of his reason or faculties, or the control or motion of his person or body, then he is in an intoxicated condition within the meaning of the law and these instructions.' * * *.

Appellant argues that the instruction 'was erroneous and not the approved definition of intoxication', and that the definition that "a person is drunk in legal sense when he is so far under the influence of intoxicating liquor that his passions are visibly excited or his judgment impaired by the liquor", as stated in State v. Pierce, 65 Iowa 85, 88, 21 N.W. 195, 197 and State v. Wheelock, 218 Iowa 178, 187, 254 N.W. 313, is the definition that should have been given to the jury.

This definition is in substantial accord with the definition given by the Court in the action before this Court, and with the definition held not to have been reversible error in State v. Huxford, 47 Iowa 16, 18, and in State ex rel. Cosson v. Baughn, 162 Iowa 308, 310-311, 143 N.W. 1100, 1101, 50 L.R.A., N.S., 912, in which the juries were instructed that: "When any person, from the use of intoxicating liquors, has affected his reason or his faculties, or has rendered him incoherent of speech, or has caused him to lose control in any manner, or to any extent, of the action or motion of his person or body, such person, in contemplation of law, is intoxicated."

In State ex rel. Cosson v. Baughn, supra, at page 311 of the Iowa Report, 143 N.W. at page 1101, this Court said: 'Thus it was said in a lucid instruction quoted in Elkin v. Buschner, [1 Mona, Pa. 359] 16 A. 102: 'Now what do we mean by a man being drunk or intoxicated? We often have very contradictory testimony on that subject. * * * A great deal of such testimony can be explained by the different ideas those persons have as to what is meant by drunkenness or intoxication. There are degrees of intoxication or drunkenness, as every one knows. A man is said to be dead drunk when he is perfectly unconscious--powerless. He is said to be stupidly drunk when a kind of a stupor comes over him. He is said to be staggering drunk when he staggers in walking. He is said to be foolishly drunk when he acts the fool. All these are cases of drunkenness--of different degrees of drunkenness. * * * Whenever a man is under the influence of liquor so as not to be entirely himself, he is intoxicated; although he can walk straight, although he may attend to his business, and may not give any outward and visible signs to the casual observer that he is drunk, yet if he is under the influence of liquor so as not to be himself,...