The State v. Mcgarry

• Decision Date: 03 October 1900
• Parties: THE STATE IOWA v. JOHN MCGARRY, Appellant
• Court: Iowa Supreme Court

83 N.W. 718

111 Iowa 709

THE STATE IOWA v. JOHN MCGARRY, Appellant

Supreme Court of Iowa, Des Moines

October 3, 1900

Appeal from Dubuque District Court.--HON. J. L. HUSTED, Judge.

INDICTMENT for murder in the first degree. From a judgment entered on a verdict of guilty of murder in the second degree, defendant appeals.--Reversed.

New trial ordered, and judgment REVERSED.

Alphons Matthews and P. J. Nelson for appellant.

Milton Remley, Attorney General, and Henry Michel for the State.

WATERMAN J. GRANGER, C. J., not sitting.

OPINION

WATERMAN, J.

The first matter presented relates to a claimed error of the court in overruling a motion to quash the indictment. No reasons are given in support of this contention, so we deem it sufficient to say, after a careful examination of the record, that the action of the trial court in this respect was fully justified.

II. One defense of which evidence was offered was an alibi. On this subject the trial court gave the following instructions: (13) The defendant makes as one of his defenses herein whet is known as an 'alibi;' that is, that at the time of the commission of the crime charged in the indictment he was at a different place, so that he could not have committed it. The testimony in support of this defense, to be entitled to weight, must be such as to show that, at the very time of the commission of the crime, the defendant was at another place so far away, or under such circumstances, that he could not have been at the place where the crime was committed. The burden of establishing this defense by a preponderance of credible testimony is upon the defendant. If he has so established it, he is entitled to an acquittal. (14) If however, the defendant has failed to establish this defense by a preponderance of the credible testimony, then he is not entitled to an acquittal upon this ground, nor to have it considered by you as a basis of a reasonable doubt." The last of these instructions does not correctly state the law. While as a distinct issue an alibi must be established by a preponderance of evidence (State v. Hamilton, 57 Iowa 596, 11 N.W. 5, and cases cited therein), yet, if the evidence offered to show it falls short of this in weight nevertheless such evidence is for the consideration of the jury; and if upon the whole case, including that part pertaining to the alibi, they have a reasonable doubt of defendant's guilt, he should be acquitted. In State v. Maher, 74 Iowa 77, 37 N.W. 2, this court said on the subject: "The court below, in one or more instructions directed the jury, in substance, that the alibi relied upon as a defense must be established, if at all, by the preponderance of evidence. Another instruction directs the jury, in effect, that if upon the whole evidence, including that tending to establish the alibi, they entertained a reasonable doubt, they should acquit. Counsel for defendant insist that these instructions are contradictory and misleading. We are of opinion that they harmonize, and each and all, considered together, accord with the doctrine, recognized by this court. Under these instructions, the jury are required to find the alibi upon the preponderance of the evidence, but, if a reasonable doubt of defendant's guilt remains in their minds after weighing all the evidence, they must acquit. They cannot acquit on the defense of alibi unless it is supported by the preponderance of the evidence; but if the evidence upon that defense, considered alone, or in connection with all other evidence, leaves a reasonable doubt in the minds of the jury, they cannot convict. The instructions accord with the doctrines of this court pertaining to the subjects of alibi and reasonable doubt." While this language was used with relation to exceptions taken by a defendant to the instructions, the rule announced is unequivocal, and in line with the weight of authority. For a collection of cases, see 2 Am. & Eng Enc. of Law, 53. The doctrine laid down in State v. Maher, on this subject, is expressly approved in State v. Hatfield, 75 Iowa 592, 39 N.W. 910. See, also, State v. Fry, 67 Iowa 475, 25 N.W. 738; State v. Kline, 54 Iowa 183, 6 N.W. 184; State v. Hardin, 46 Iowa 623. In some other jurisdiction where an alibi is treated as a distinct defense, and to be available must be established by a preponderance of evidence, the same qualification, as announced in State v. Maher, is adopted. People v. Lee Sare Bo, 72 Cal. 623 (14 P. 310); People v. Fong Ah Sing, 64 Cal. 253 (28 P. 233); People v. Lee Gam, 69 Cal. 552 (11 P. 183); People v. Tarm Poi, 86 Cal. 225 (24 P. 998); People v. Chun Heong, 86 Cal. 329 (24 P. 1021); State v. Ward, 61 Vt. 153 (17 A. 483). It is manifest that the instruction given in the case at bar is not in harmony with the rule stated. The jury are told, in effect, that, if the evidence relating to the alibi does not so preponderate as to establish that distinctive fact, it cannot be considered or used as a...