Charged by county attorney’s information with the crime of aggravated robbery in violation of Code section 711.2, defendant entered a not guilty plea, trial to jury resulted in a verdict finding him guilty of the offense charged, and from judgment accordingly entered, he appeals. We affirm.
The record discloses that about 3:45 A. M., September 28, 1967, two men entered the Holiday Inn in Cedar Falls, and asked for accommodations. When told by Wesley Newman Jones, attendant, none were available, one of the men, later identified as Albert Parham, produced a gun and demanded money. Mr. Jones placed $84.50 in a bag, handed it to Parham, and he in lifting the gun from the counter top caused it to be fired. The bullet lodged in a wall.
Parham and his companion, also later identified as defendant, then left. Mr. Jones reported the robbery and within one-half hour the police stopped a car driven by Eddie Eugene Scott, the other occupants being defendant, Parham and James Hendrix.
The officers then found in the automobile a green sack containing $84.50. The men were all searched but no weapons found. Later a revolver was discovered about 8-10 feet from where the Scott operated car had been stopped.
As a witness for the state, Scott testified, inter alia, he drove the car containing his three companions to the Holiday Inn, that he and Hendrix remained in the automobile while defendant and Parham entered the place. They were gone about five minutes, returned, entered the vehicle, and he drove away not knowing what had taken place.
Errors asserted by defendant on appeal are, trial court erred in (1) refusing a requested preliminary hearing; (2) failing to instruct the jury as to certain claimed lesser and included offenses; (3) giving instruction 3; and (4) giving instruction 5.
I. As best we can determine from the record a preliminary information was originally filed, defendant accordingly taken before a magistrate, and time for hearing prescribed. Thereafter he was charged by county attorney’s information, and prior to trial moved that the court grant him a preliminary hearing. This motion was overruled. That ruling is challenged.
Basically a preliminary hearing relates only to legality of detention of one accused of a felony or indictable misdemeanor before he has been charged by either information or indictment. Code chapters 761, 769, and 773. See also Morford v. Hocker, (9 Cir.),
Defendant contends failure to accord him a preliminary hearing violated his constitutional rights, specifying neither the constitution or provision thereof on which he relied.
Little or nothing is to be gained by discussing the sufficiency of this generalized complaint.
In State v. Collins, Iowa,
*440 We now hold an accused is not entitled to a preliminary hearing even though it has been scheduled prior to the filing of an information or return of indictment charging him with the same offense. Such a proceeding would ordinarily be an idle and useless gesture.
II. Trial court instructed the jury relative to robbery with aggravation and robbery.
Defendant claims the court erred in not giving instructions requested on assault with intent to rob, assault with intent to do great bodily injury, larceny, and assault and battery.
The following relevant statutes provide:
Section 711.1 — “If any person, with force or violence, or by putting in fear, steal and take from the person of another any property that is the subject of larceny, he is guilty of robbery, and shall be punished according to the aggravation of the offense, as is provided in sections 711.2 and 711.3.”
Section 711.2 — “If such offender at the time of such robbery is armed with a dangerous weapon, with intent, if resisted, to kill or maim the person robbed; or if, being so armed, he wound or strike the person robbed; or if he has any confederate aiding or abetting him in such robbery, present and so armed, he shall be imprisoned in the penitentiary for a term of twenty-five years.”
Section 711.3 — “If such offender commits the robbery otherwise than is mentioned in section 711.2, he shall be imprisoned in the penitentiary not exceeding ten years.”
State v. McCall,
In State v. Merrill,
There follows this conclusion: “Applying these established legal principles to the facts * * *, we think the trial court, by submitting the included offense of robbery without aggravation, gave appellants, to say the least, all that they were entitled to.”
State v. Clough,
Trial court, in refusing to instruct on offenses of a lesser nature than robbery found, the only evidence presented reveals a robbery occurred, a gun was used, and defendant is guilty of robbery with aggravation, or robbery, or is not guilty of any offense. We agree.
The jury was given three choices: guilty of aggravated robbery, robbery, or innocent.
*441 The verdict returned discloses error, if any, was without prejudice.
III. At time of trial defendant took exceptions to proposed jury instruction 2, here for the first time voicing objection to instruction 3.
Ordinarily matters not raised in the trial court, including constitutional questions, cannot be effectively asserted the first time on appeal. State v. Everett, Iowa,
And objections made as to any instruction must specify the ground of error or irregularity relied upon. Code section 780.35; rule 196, R.C.P.; and State v. Bamsey,
Furthermore, an accused desiring additional or more specific instructions must make timely request therefor. State v. Hardesty, Iowa,
Also in State v. Schmidt,
On the other hand we said in State v. Hochmuth,
But here defendant interposed no motion for new trial, leaving the record stand as made in course of trial. See in this regard Code section 787.3(5) (7). State v. LaMar and State v. Schmidt, both supra.
Unquestionably all instructions must be considered as a whole and read in relation to their context, not separated and treated piecemeal. State v. Hardesty, Iowa,
Instruction 2 states, in material part: “A reasonable doubt may arise from the evidence in the case or it may arise from a lack or failure of evidence, * *
This was followed by instruction 3, the challenged portion of which provides: “The proof is sufficient to sustain a conviction if it established the guilt of the defendant to a moral certainty; and if under all the instructions given you by the Court you find that the evidence in this case fully and fairly satisfied your minds to a moral certainty that the defendant is guilty, and you have no doubt of his guilt because of any evidence in the case or any lack of evidence in the case, then you are warranted in returning a verdict that the defendant is guilty.” (Emphasis supplied.)
Of course,
guilt
cannot be foundationed upon lack or absence of evidence. But
reasonable doubt
may arise from evidence presented as well as absence thereof. See State v. Shipley,
In view of the fact instructions 2 and 3 bear some degree of relationship the latter has, entirely as a matter of grace, been carefully considered in the light of others given. See State v. Ryerson,
Though instruction 3 can hardly be classified as a model of clarity it still clearly confines the matter of absence of evidence to reasonable doubt, not guilt.
We therefore find the error here claimed by defendant to be without merit.
IV. As aforesaid defendant also challenged proposed instruction 5. Although *442 the objection then made is not as asserted on appeal, we entertain it now for all the reasons stated supra.
By that directive the jury was advised, in part: “To aid and abet means to assent to an act, to lend to it countenance and approval * * * or by being present at and during the commission of the act or acts or by some manner aiding, advising, and encouraging it. The mere presence of a person at the place where a crime is being committed is not of itself sufficient to constitute such person as an aider or abettor in the commission of a crime.”
It must be conceded mere presence at the scene of a crime is not sufficient to make one an aider or abettor. State v. McClelland, Iowa,
By lifting from context and according the instruction a strained interpretation it does say aiding and abetting may be shown “by being present at or during the commission of the act or acts”.
But when fully and fairly construed it more accurately states, in substance, to aid and abet means to assent to an act, to lend it countenance and approval by being present, but mere presence alone is not sufficient to make one an aider and abettor. See Des Moines Etc. Distrs., Inc. v. Drewrys Ltd.,
Also, with regard to the foregoing this court said in State v. Davis,
This does not mean instruction 5 is looked upon with favor or should be employed as a pattern.
We merely find that given a fair interpretation it cannot be held prejudicially erroneous.
Affirmed.