On this appeal appellant bases his right to a reversal of the judgment solely upon the commission of errors by the trial court in'giving certain instructions to the jury. Four of the court’s instructions are challenged.
I. Appellant contends that the court committed reversible error in giving Instruction No. 1, to wit: “You are to take the facts as the same have been established by the proof, together with the lack of testimony, if any, and the fair and reasonable inferences which may be drawn therefrom, and the law as given you in charge' by the court in these instructions, and therefrom determine whether the defendant is or is not guilty, and without regard to consequences, return your verdict accordingly. You are the sole judges of the facts in the case, and the court instructs you as to the law. The court has not, however, attempted *455 nor intended to embody in any one instruction all of the law applicable to the case. You are to consider and to construe together all of the instructions and apply them, as a whole, to the evidence in the case.” (Italics ours.)
Appellant’s complaint is directed to the words we have italicized. He states: “This instruction does not limit the lack of testimony to the State, and permits the jury to consider the lack of testimony on the part of the defendant, and draw any inferences therefrom, all to the prejudice of the defendant. It placed a burden upon the defendant which the law does not require him to assume. It is not the law that the defendant in a criminal case must go forward with the burden of proof, and, in effect, this instruction forces the defendant into that position.”
While the reference to lack of testimony is essential in an instruction defining reasonable doubt, its use in Instruction No. 1 above was perhaps unfortunate. Lack of evidence may, of course, engender a reasonable doubt; but the use of the phrase in other instructions is ordinarily not to be commended since it may be interpreted as permitting the jury to find a defendant guilty because of such lack of evidence.
However, we do not find reversible error at this point. The jurors were told in the challenged instruction that all the instructions were to be construed together as a whole. This court has so held repeatedly. We cite but a few decisions. State v. Katz,
*456 It is not reasonable to believe that the jurors, after considering the court’s instructions as a unit, had any doubt or uncertainty that the burden of proof to establish every element of the offense charged was upon the State. Nor is it reasonable to believe that the jurors thought that the phrase, “together with lack of testimony”, meant such lack or failure on the part of the defendant. The instructions made it clear to the jury that the burden was on the State to produce sufficient testimony to justify a conviction within the law as stated in the court’s charge to the jury.
Instructions to juries concerning “lack of evidence” have been involved in many appeals to this court, and there has been some lack of harmony in its decisions. A review of them would serve no purpose. But the later decisions in criminal appeals have been consistent in holding that the jury should be instructed to arrive at a verdict from a consideration of all the evidence in the case, or from the lack of evidence on the part of the State, the burden being upon the State to produce- sufficient evidence for a verdict of guilty. See State v. Anderson,
Appellant cites but two authorities in support of his contention, State v. Sauerbry, supra,
Assigned Error No. 1 is without merit.
II. Appellant assigns error in the giving of Instruction No. 8, to wit: “A person is in an intoxicated condition within the meaning of the statute and these instructions, when, by reason of the use of intoxicating liquors, including beer, his faculties have been overcome or affected, and he is unable to *457 exercise proper control over his actions, or his judgment is impaired. It does not necessarily mean that he must be in a stupor or unable at all to control his actions, but if by reason of the use of alcoholic liquors, including beer, he has lost control in any manner or to any extent of his reason or faculties, or the control or motion of his person or body, then he is in an intoxicated condition within the meaning of the law and these instructions.”
Appellant argues that the instruction “was erroneous and not the approved definition of intoxication” and that the definition that “
‘a
person is drunk in a legal sense when he is so far under the influence of intoxicating liquor that his passions are visibly excited or his judgment impaired by the liquor’ ’ ’, as stated in State v. Pierce,
This definition is in substantial accord with the definition given by the court in the action before this court, and with the definition held not to have been reversible error in State v. Huxford,
In State ex rel. Cosson v. Baughn, supra, page 311 of the Iowa Report, this court said: “Thus it was said in a lucid instruction quoted in Elkin v. Buschner (Pa.)
Section 321.281 of the 1954 Code of Iowa applies to: “Whoever, while in an intoxicated condition * * * operates a motor vehicle upon the public highways of this state * * No degree of intoxication is specified. The section is one of the provisions in a chapter enacted for the promotion of safety on the highways. A motorist who was only exhilarated or overexuberant mentally might be a greater menace on the highways than one whose mind was dulled by intoxicating liquor.
In State v. Yates,
He need not be staggering drunk. Bill v. Bill,
There was testimony that defendant weaved and walked unsteadily; that he did not meet some equilibrium tests, and was unable to stand on one leg; his eyes were dilated and there was an alcoholic odor in his breath. One Schloemer was in a party who wenjt into Des Moines to help one of them pick out a dog. Defendant testified that he drank not over two bottles of beer on the trip, but drank no whiskey. Schloemer testified that he and defendant had three “shots” of whiskey at one place. On their return to the Schloemer farm home, late in the evening, there was an altercation between Schloemer and defendant, because, as Schloemer said, defendant wished to get some more *459 beer, which defendant denied. Schloemer produced a gun and ordered defendant to leave the house in twenty minutes. Defendant took the gun away from Schloemer and broke it over the latter’s head. Defendant then took the little boy of Sehloemers’, at the request of Mrs. Schloemer, to get him something to eat. Schloemer called the sheriff and when defendant returned to the home with the boy, the sheriff and two highway patrolmen and a Justice of the Peace were there, and defendant was arrested. These officers were witnesses for the State and testified to the matters above noted bearing upon the defendant’s intoxication. Each testified that in his opinion the defendant was intoxicated. Mr. Schloemer was a witness for the State, but gave no opinion as to defendant’s intoxication.
There was no prejudicial error in Instruction No. 8.
III. Instruction No. 9 was: “The defendant has testified before you as a witness in his own behalf, and his testimony should be considered and weighed by you like that of any other witness, taking into consideration the fact that he is the defendant and charged with the alleged crime. ■ While for that reason alone'you should not disregard his testimony, yet the fact that he is testifying in his own behalf should be considered by you. You should fairly and impartially consider his evidence, as you should that of all the other witnesses. You should also consider whether the testimony of the defendant is true and made in good faith, or whether for the purpose of avoiding conviction, and in the light of all the other facts and circumstances, as presented by the evidence, you should give his testimony such weight as you believe it is fairly entitled to receive.”
Appellant complains of this instruction because it singled his testimony out and gave it undue prominence over the testimony of other witnesses, and specifically directed the jurors to determine whether he was telling the truth or lying. Substantially the same instruction has been frequently approved by this court. State v. Mikesh,
The court did not err in giving Instruction No. 9.
IV. On cross-examination defendant testified that he had been convicted of a felony. Section 622.17, Code of .Iowa *460 1954, provides: “A witness may be interrogated as to bis previous conviction for a felony. * *
In Instruction No. 10 the court stated: “A witness may be impeached by showing that he has been convicted of a felony. * * * If you find that said defendant has been impeached, you are not required to wholly disregard the testimony of said defendant. If his evidence has been sustained by other corroborating evidence, or if for any reason you believe what he has testified to is true, then you are not required to disregard it merely because you may find that he has been impeached. The degree of credit and weight to be given to the testimony of said witness, if any, as well as the credit and weight to be given to the testimony of each and all of the witnesses, must be determined by you jurors alone, taking into consideration all of the evidence and all of the facts and circumstances proven and established upon the trial of this case.”
Appellant complains because the court did not explain or define to the jury the word “impeach” but left the meaning of the word to the speculation of the jury. He further contends that the instruction as a whole was highly prejudicial to him, and arbitrarily compelled the jury to disregard a part of-defendant’s testimony if they believed he had been convicted of a prior felony. A similar instruction was upheld in State v. Van Vliet,
The instruction was correct as given and if defendant desired further clarification he should have requested it. This court has many times so held. State v. Holoubek,
This assignment is without merit. ■
*461 We have considered all the propositions and errors assigned which have been argued. The appellant had a fair trial.
The judgment is — Affirmed.