170 Iowa 329 | Iowa | 1915
' The State responds that the sole objection is to the instruction as a whole; that it is not well taken because defendant concedes the instruction to be applicable to the evidence concerning his doings before 11 o’clock; that by putting in such evidence, he himself injected alibi into the case; and that against this, it is not controlling what label the defendant puts on the defense which he did make, nor what he claims for it. It is further said that the instruction given is uniformly approved by many of our decisions, and that there is nothing irregular about it, unless it be the underscoring of the word alibi, and that, if the instruction is warranted, the underscoring of this word cannot be error.
"We agree that, if there was warrant for instructing on alibi, the underscoring of the word alibi is of no consequence, and agree that the charge was one of approved form. But it does not follow that it is material that such instruction is in approved form. If there'was no evidence to base the instruction, it cannot be. defended though it was in proper form. "We thus reach the real question-on this head, — whether there was any evidence which warranted the giving of this charge, and whether, if it was unwarranted by the record, its giving was prejudicial.
2. The theory of the State is that, as defendant claims he “was 25 feet away and no closer,” he so asserted that it was “physically impossible for him to have participated in the identical crime from his location”; that this presents the defense of alibi as much as though he had remained 500 feet away; that the size of the distance, if not wholly immaterial, is not controlling, and that the following authorities sustain this contention: 2 Am. & Eng. Enc. of Law, page 53, and foot-note, states, in effect, that alibi “literally” means “elsewhere” and that the defendant or person accused was in a place which “precludes the idea that he was the perpetrator.” The cases cited in support of this text are: Hardin’s case
Aside from this support for this text, there is Child’s case, 20 Pac. 275 (Kansas), wherein it was charged that the proof must show that participation was “practically improbable or impossible.” Whether this is correct is not touched. And the decision is merely that it was error to charge that defendant had the burden of proof on this.
Peyton’s case, 54 Neb. at 190, holds that, while being at some distance from the alleged place of commitment is “necessarily elemental” in proof of alibi, yet “the distance disclosed by the evidence is not always an absolutely controlling fact”; that the distance itself bears merely on the strength of the defense, and it is error to require that “the distance must be such as to preclude any possibility of a participation in the crime”, — all of which means merely that the jury must sustain the alibi if it believes defendant was so far away as to make participation impossible, and may sustain it, though the evidence that the distance was so great as this is less conclusive
In Gulliver’s case, 163 Iowa 123, an instruction does charge that the testimony in support of an alibi must show that defendant was so far away that he could not be present at the scene of the crime. But the only thing decided is that instructing that such testimony “is entitled to weight” constitutes a departure from the correct rule, which is that, instead of being merely entitled to weight, such testimony may work an acquittal, if, in connection with all the testimony, it raises a reasonable doubt. In other words, the case assumes that what is required to be proven is correctly stated, criticizes the instruction because it, standing alone, fails to make clear what consideration such testimony is entitled to, and decides also that this fault is cured by other parts of the charge.
The utmost that can be claimed for all this is that one showing as to distance may settle conclusively that the defendant could not have participated, another may establish conclusively that the distance shown is insufficient to sustain an alibi, and, third, that the showing as to distance may be such as to leave it a question for the jury whether an alibi is made out. We are therefore brought to deal with the question at bar unaffected by the citations made for the State, and to consider its contention in the light of adjudications other than the ones cited by it, and in the light of reason.
3. It is urged upon us that, while defendant does not deny that he was near the scene of action at the identical time when the offense occurred, “what he does claim is he was 25 feet away and no closer”; that his claim of a “physical impossibility” to have reached the place of commission refers to “the possibility of reaching out and touching the car from the identical place where the defendant was standing.” It is illustrated that one might see something occur while “three blocks” distant, or see an occurrence while stand
II. When the plea of not guilty is entered, the State must prove guilt, but the defendant may fortify his plea of not guilty by evidence. In many eases, such evidence is that, while he was not prevented by distance from committing the act charged, yet he refrained from doing so. This very often involves the claim that accused did not come into physical contact with somebody or something. In every case wherein it is defended that accused did not commit an assault though nothing prevented his committing it, it is claimed, of necessity, that the hands of defendant did not touch the body of his alleged victim. One accused of having struck a blow with his fist, who admits that he was within five feet of the person struck and asserts that he was never closer, denies physical contact. On the theory of the State, each of these is the defense of alibi. The practical effect would be to shift the burden of proof in such cases and to.relieve the State from overcoming the plea of not guilty. Say the charge is rape, and defendant admits he was where he could have committed the act, but insists that he at no time went closer
In State v. Lindsay, 152 Iowa 403, 405, the charge was that the defendant had ravished a little girl, having taken several children, including the prosecutrix, on trips in his auto. The testimony was that he was met on these several trips, and the time of meeting was fixed between five and six o’clock in the afternoon. According to the story of the prosecutrix, one of the first persons she saw after the defendant left her was a Mrs. Marquis, and the latter fixed this time as being 5:30 in the afternoon. An instruction involving alibi was complained of for having no basis in the record, and this contention was sustained, and the court said:
“The only evidence pointed out to us by the State in support of these instructions is the evidence of a witness for the defendant, who fixes the time of defendant’s return to Prairie City at five minutes before six. The prosecutrix testi*338 tied that when she saw Mrs. Marquis it had been fifteen minutes or less since the defendant left her. The exact distance from Colfax to Prairie City does not appear, but it is a near-by town in the same county, and there is no claim made on either side that the distance could not have been traversed within a half an hour. We find nothing, either in the defendant’s testimony or in that of the witnesses in his behalf, which can be said to present the defense of alibi. On the contrary, the testimony of the defendant himself was that he did take the little girl riding at or about the time she says he did. He does not claim that it was physically impossible for him to have perpetrated the crime because of distance separating him from the prosecutrix. He concedes his presence with the little girl at or near the time of the alleged crime, but he denies that he perpetrated any crime upon her. ’ ’
This is a full recognition of the distinction we are pointing out. The defense of alibi, which easts certain burdens upon the defendant, is an affirmative defense which asserts that distance made it impossible to commit the crime. What was done here amounts to a denial of guilt, with the concession that no distance or other physical cause made it impossible, or even improbable, that defendant committed the offense. It amounts to a plea of not guilty, and the defendant is not bound to prove its truth, nor should his testimony in support of such plea be disparaged.
In Lindsay’s case, the charge as to alibi defined the same to be “that at the time of the commission of the alleged offense with which he was charged he was at a different place so that he could not have participated in its commission.” In the case at bar, the charge is, “it must be shown at the very time of the commission of the crime alleged, if one was committed, the accused was at another place so far away, or under such circumstances, that he could not with any ordinary exertion, have reached the place where the crime was committed, so as to have participated therein.” We are
That the instruction now in review was prejudicial is manifest. Even in a civil ease, the giving of an instruction which has no basis in the evidence is error. To say nothing of the presumption of prejudice which arises from the fact that the charge given was erroneous, this record makes an affirmative showing of prejudice. In. the first place, its tendency was to lead the jury to infer that the only defense was that defendant was so far away that he could not have reached the place where the crime was committed. At the least, some of the attention of the jury which should have been expended upon matter that should have consideration was devoted to this point. There is the additional prejudice pointed out in the Lindsay case, “The instructions upon this subject placed him and his defense in a false light before the jury. The findings of the jury would necessarily be adverse to such an alleged defense. There was no testimony on either side from which an alibi could be found, in the sense in which that term is used in criminal cases, and in which it was defined by the court. ’ ’
What is even more prejudicial is what we have repeatedly dwelt on: that the testimony which defendant adduced to fortify his plea of not guilty was sent to the jury under disparagement, with direction to scan it carefully, to be cautious in giving it weight, and further,'- that it was for defendant to show, by a preponderance, that his testimony was true.
It is none too clear what is meant by the rule which puts the burden as to alibi on the defendant, and makes his testimony on alibi available in aid of creating a reasonable doubt which, if entertained, effects a holding that the State has not met its burden. This distinction we have herein pointed out tends to help clear the tangle. A denial that defendant participated leaves the burden on the State. If coupled with
The Lindsay case finds that substantially what is done here constitutes manifestly prejudicial error, and we cannot escape from reaching the same conclusion here.
The State says it is not “absolutely essential” to prove the ownership of the car. The authorities cited by defendant, claiming that the rule which requires the proof of needless allegation in indictment applies here, need no consideration. For it seems to us that both the statute and the indictment make it necessary that there should be proof: first, that there was an electric railway of the name stated in
2
The claim of defendant that, on the charge of larceny, it must be proven that the stolen property belonged to an individual company, partnership or corporation, and belonged to someone other than defendant, is indisputably sound, and the many citations in its support are unnecessary. Nor is the rule limited to larceny. Whenever a statute so describes an offense that it cannot be committed unless the property affected by the offense belongs to someone other than the defendant, the ownership of that other must be alleged and proven as alleged. Whittier’s case [State v. Whittier], 21 Me. 341. So, for instance, where the unlawful killing of an animal is prohibited when done in an enclosure surrounded by a lawful fence, there must be an acquittal if the proof fails to disclose the existence of such enclosure. Deal’s case [State v. Deal], 92 N. C. 802. This case does not differ in principle from the one at bar. Even as the charge of killing within an enclosure surrounded by a lawful fence lacks proof to sustain the conviction unless it is shown that the enclosure was so surrounded, so is there fatal failure of proof if, on prosecution under a statute for injuring an apparatus 'belonging to an electric railway, there is no proof that there is such company in existence, and that the property injured belonged to it.
Cases may and usually do differ in facts, but such difference does not preclude evolving a rule from them. So, here,
In Kelley’s case, 206 Mo. 685, the ownership was laid in a corporation. It was held that the fact of incorporation should be alleged, and that this was necessary, though the existence of a corporation de facto will sustain the ..charge; and as nothing is to be left to intendment, defendant is entitled to know whether the state intends to show ownership in individuals, in a firm composed of individuals, or in a corporation. It has been held that in larceny it may be proved by general reputation that the owner is a corporation. Thompson’s case, 23 Kans. 338. And so on a charge of uttering a counterfeit note. Reed’s case, [Reed v. State], 15 Ohio 217; Ah Sam’s case, 41 Calif. 645. On forgery of a draft of a mining company, testimony that witness was president of the company, and found the forged draft with its vouchers, was held sufficient proof that the company was a corporation de facto. Frank’s case, 28 Calif. 507. And so of testimony that the company known by the name given in the indictment was a corporation de facto, and doing business as such. Barric’s case, 49 Calif. 342. In People v. Hughes, 29 Calif. 257, defendant was charged with burning a building insured by a duly incorporated company of the name Hartford Insurance Company. A witness testified that he was acting as the agent of the corporation having the insurance, delivered the policy, and that it was received by defendant. It was held that from these facts the jury might well find the de facto existence of the corporation. In Miller’s case, 21 Pac. 1025, the indictment charges that stolen property belonged to a named railroad and that the same is a corporation. The evidence is not set out, but the court says: “Upon a careful review of the entire record in this case, we are unable to escape the
As said, while each and all of these cases differ in their facts from each other and from the ease now in consideration, the very fact that each and all of them found it necessary to' dispose of the question we are now considering, by holding either that there was or was not sufficient proof on the existence of the alleged owner, or of his ownership, demonstrates, in spite of the varying facts upon which the cases turn, that such proof is deemed vital.
"What we have left for decision, then, is not what the law is, but whether the existence of the named company and its ownership of the ears in question is sufficiently supported by the evidence to sustain the conviction here appealed from.
No objection was made below, and. none is presented here, that the evidence did not warrant the instruction which the court gave, and we are precluded from going into that question. But even if defendant has waived the right to complain of the fact that this instruction was given at all, he has preserved the right to present here that it should have been amplified as requested. The instructions given did not prohibit the jury from finding the defendant guilty merely because it was found that he was present and remained silent and inactive, or if they believed that he made a proposal to go and bum some car somewhere. We have no way of knowing but that the verdict of guilty rests upon one or both of these matters. “An instruction is erroneous if it authorizes the jury to convict the defendant because of his presence or mere mental approval or consent without requiring that he shall have aided in or encouraged the commission of the crime.” 12 Cyc. 616. Mere passive failure to disclose the commission of a crime will not make one an accessory. Davis v. State, 130 S. W. 547, 549 (Ark). In Hicks v. United States, 150 U. S. 442, a case which appellant erroneously cites for the claim that the court should have instructed more specifically on the definition of aider and abettor, it is, however, held that the mere use of words, the effect of which is to encourage another to commit a crime, does not make the user thereof an aider and abettor unless he intended them to have that effect. We are unable to accede to the claim that instruction number seven “fully gives the defendant all his rights” on this head. It is nothing but the usual instruction on credi
In Northrup’s case, the jury was told, in substance, that evidence of good character could be of no avail or benefit to defendants unless the question of their guilt was doubtful upon a consideration of the evidence other than that in relation to their good character. The case holds the true rule to be “that the good character of the accused is for the consideration of the jury in all cases, and it is for them to determine
“No presumption exists against- one who does not attempt to establish a good character except such as can be legitimately drawn from the evidence. Therefore, the same quantity and quality of evidence should make a clear or strong case against both. The evidence which creates a doubt, unless good character may be considered in determining whether such a doubt exists or not, must necessarily be the same as to all men and cases, if the rule of the instructions in this case be correct. We cannot subscribe to any such doctrine. Good character, like all other facts in the case, could be considered by th'e jury, and if therefrom a reasonable doubt is generated in the mind of the jury as to the guilt of the accused, it is their duty to acquit. Of course, we must not.be understood as saying that good character is a defense, for it is not as a matter of law. But it is á fact for the consideration of the jury, as are all the other facts in the case, and they must determine its weight in all cases.”
In Horning’s case, the evidence of guilt was very weak, and the charge that, while evidence of a good character will go far to rebut any presumption of guilt arising from circum
In State v. Jones, 52 Iowa, at 151, the evidence was circumstantial, and the court charged that “good character affects nothing as against established facts.” We held that if this means good character is of no avail where guilt is established, it is right, because good character is no defense against guilt. But it is found that the charge was probably understood in the sense that if, in a case made out by circumstances, the several facts from which guilt may be inferred are established, good character can affect nothing and should have no weight. It is said that this is unsound; that good character is always entitled to consideration, and always should have some effect on the verdict; that where the evidence is circumstantial and the several facts from which it is sought to draw the inference of guilt are clearly established, a jury may from proof of good character alone refuse to infer that the defendant is guilty.
In State v. Lindley, 51 Iowa 343, an instruction directing the jury that previous good character would not constitute a defense as against facts positively or strongly proven was held to be erroneous. On page 344, the court said: “There may be cases where a state of facts may be said to be strongly proven, and yet the jury may be justified in the light of an unblemished character in finding a verdict of not guilty.”
In Fitzgerald’s case [State v. Fitzgerald], 49 Iowa 260, it is held merely that on whether the presumption was rebutted that an attempt at abortion by a wife was under coercion by the husband, it was error to admit evidence that the defendant consented to her husband’s having sexual intercourse with the'prosecuting witness months before the alleged crime was committed, especially so in view of the fact that the defendant showed that she was a woman of good character and reputation.
We find in none of . these anything that is in substantial
Manifestly, the court was right in refusing to give this instruction. Its basic thought is that unless the car was lifted bodily off the track and spirited away, it was not, as a matter of law, removed, and that, therefore, a summary direction to acquit must follow. Even if we assume that the court should have more fully defined these terms, its failure to do so is
We see no force in the repeated and varied, statement of the claim that the instructions of the court did not sufficiently define the meaning of the words “aider” and “abettor,” and that the jury was left improperly to draw its own conclusion as to what an aider and abettor might be. Nothing in the citation from 12 Cyc. 616, or People v. Bond, 109 Pac. 150 (Calif.), differs from this position. Neither of these go beyond giving a definition of these terms. They do not hold that they must be defined, or defined in any particular way, or more fully than is done here.
VII. The giving of instructions number eleven and one-half and number four is assigned as error. We are favored with no argument on the point. We have examined the instructions and find that number four merely sets out the provisions of the statute under which the indictment was found, and sets them out correctly; and that number eleven and one-half is a correct statement of the care with which statements as to declarations alleged to have been made by witnesses out of court should be received, and how they should be weighed.
For the errors pointed out in Divisions II and IV of this opinion, the cause must be reversed. — Reversed arid Remcmded.