38 Iowa 504 | Iowa | 1874
II. It is further urged here that the court erred in refusing to strike out the testimony of three of the witnesses for the prosecution, because the testimony was wholly immaterial to the issue. But, as we read the indictment and the testimony, the latter was quite material, and the court did not err in refusing to strike it out.
III. The court instructed the- jury," among others, as follows: “ 7. In order to authorize a conviction, it is not neces, sary to prove the exact words charged in the indictment, it will be sufficient to prove that the defendant testified in substance as charged in the indictment.” The very words of the objection here made by appellant’s counsel to this instruction are these: “The jury are to determine from the evidence the words spoken by the defendant, and then under the instructions of the court, after they have determined as to the language used by the defendant, to render their verdict.” The objection as made, does not present to our minds any sufficient reason for holding the instruction erroneous.
Y. We are urged, by the force of three able and earnest arguments, to grant a new trial, because the verdict is contrary to the evidence and effectuates injustice. But since we
Now, the court gave twelve instructions to the jury, all of them very correct, but they have reference alone to the hypothesis claimed by the State, and to the testimony of its witnesses. But there is not a single instruction or sentence bearing upon the theory claimed by the defendant and supported by his witnesses. If the jury had believed that theory, they might possibly have found the defendant guilty, under the instructions, because they found that he did, in fact, utter the words, and he did, as a witness deny the uttering. Whereas, in law, if he could, under that theory, be convicted at all upon this indictment, it could only be upon proof satisfying the jury that he swore falsely as to his recollection or belief. That
UeVERSED.