4 N.W.2d 244 | Iowa | 1942
This appeal is before the court on a clerk's transcript of the record, which was filed January 6, 1942. The appeal was perfected on November 7, 1941. On January 19, 1942, the appellant served notice, under Rule 32 of the court, of his intention to submit the appeal upon a printed abstract and brief and argument. The time within which to file the abstract expired on March 6, 1942. Supreme Court Rule 32; State v. Johns,
Appellant's motion for new trial was denied. The first seven grounds thereof are based upon matters which require the examination of the evidential record, which is not before us because of the striking of the abstract. State v. Christiansen, supra. The eighth ground, however, is based upon an exception to instruction 11, given by the court.
In instruction 11 the court, after instructing the jurors that they were the sole judges of the credibility of the witnesses, and of the matters which they should consider in weighing the testimony, concluded the instruction with this paragraph:
"Carefully weigh, consider and compare all the evidence in the case in the light of reason and common sense, laying aside all bias, prejudice or sympathy you may have, and determine the casesolely on the evidence before you and on the law given you in these instructions." (Italics are ours.)
Appellant's exception is as follows:
"Defendant excepts to the giving of Instruction No. 11 for the reason that thereby the Jury was instructed to determine the case solely on the evidence before them and the law as given in these instructions, and the Jury was not told therein that they *18 should consider not only the evidence introduced in said cause, but also the lack of evidence in the case, which instruction was definitely contradictory to any prior statement in said instructions that a reasonable doubt might arise from the lack of evidence in the case, and vitiates any statement in said instructions that lack of evidence might be considered; and they were not thereby permitted to draw any inference from the lack of evidence in said case."
In instruction 10 the court fully and fairly instructed on reasonable doubt, and therein stated:
"A reasonable doubt is not a forced or captious doubt, but is one that fairly and naturally arises in the mind from a candid and impartial consideration of all the evidence, or lack ofevidence, in a case." (Italics are ours.)
In instruction 5 the court also stated:
"The Court has not endeavored to set out all the law to govern you in this case in any one instruction, but the instructions as a whole, when considered and construed together, each instruction in the light of and in harmony with the other instructions, will govern you as the law applicable to the case."
The matter of the failure of the trial court to include in its instructions that a reasonable doubt as to the guilt of the defendant may arise from a lack of evidence has troubled this court on many occasions, and there is some lack of harmony among its decisions on this question. Uniformly the court has held that the jury should be instructed that a reasonable doubt may arise not only from the evidence introduced but from a lack of evidence. Where the element of lack of evidence has not been thus mentioned, the court has on several occasions criticized and disapproved the instruction and has cautioned trial courts against such omissions. In a number of these cases the court has held that the omission was not necessarily prejudicial, and refused to reverse. See State v. Ritchie,
In other cases the court has held that an instruction on reasonable doubt which contains the phrase "arising from a consideration of the whole case," includes a consideration of lack of evidence. See State v. Boyd,
In some decisions, however, the court reversed, or strongly intimated that the failure to include the element of lack of evidence in an instruction on reasonable doubt was reversible error. See State v. Smith,
These last-cited decisions do not aid the appellant in the case before us. In this case it will be noted that the court included the element of lack of evidence in instruction 10 covering the matter of reasonable doubt. No exception was taken to that instruction, and it was not open to objection. But the appellant contends that the subsequent paragraph in instruction 11, by its omission to include the factor of lack of evidence, nullified the effect of its use in instruction 10. We have held to the contrary a number of times. In State v. Bamsey,
"Such a doubt must be a reasonable one, and must arise in *20 the minds of the jurors after a careful and impartial consideration of all of the evidence, or want of evidence in thecase." (Italics are ours.) While later in the same instruction the court said: "If after a careful and impartial considerationof all the evidence admitted in the case you can say and feel that you have an abiding conviction of the guilt of the defendant, and are fully satisfied of the truth of the charge, then you are satisfied beyond a reasonable doubt." And in instruction 12, the court further instructed, "* * * and the jury should endeavor to be governed solely by the evidence introducedbefore them * * *." (Italics are ours.) This court affirmed.
In State v. McGee,
In State v. Harrington,
"It was not necessary for the court to repeat this statement, and the appellant's contention in this regard is not tenable. The instructions are to be considered as a whole."
For like holdings, see State v. Ferguson,
The judgment is affirmed. — Affirmed.
All JUSTICES concur. *21