178 Iowa 1108 | Iowa | 1917
State v. Billings, 81 Iowa 99, decides: (1) Where the remarks of the trial judge indicate that, in his opinion, the verdict was not supported by the evidence, it was his duty to set the verdict aside on that ground, and having failed to do so, the conviction should for that reason be reversed, independent of the views of the Supreme Court of the sufficiency of the evidence to sustain the verdict; (2) where the undisputed facts are inconsistent with murder, but consistent with suicide, the burden is on the State to overcome the presumption arising from such facts with affirmative proof of guilt, and having failed to do this, a verdict of murder in the second degree was erroneous.
In State v. Saling, 177 Iowa 552, we approved and applied cases like State v. Woolsey, 30 Iowa 251; State v. Wise, 83 Iowa 596, and State v. Pilkington, 92 Iowa 92. They hold, in effect, that we will grant a new trial if a conviction is against a clear weight of the evidence. We agree with State
True, the two men who waited while Beeves got the beer do not know what house he went into. But it is admitted and undisputed that Beeves did go into the house of defendant and tried to get the beer and returned to those in waiting with four bottles of beer. As said, this is not disputed. But it is explained, and the explanation is disputed. It is that, just at the time when Beeves asked for beer, defendant had got some from an unknown and undescribed man in the alley. Defendant, however, kindly advised Beeves that he, too, could
One of the two witnesses for defendant is his son-in-law. This son-in-law is the tenant on the farm of the other witness, Casady; and the wife of the son-in-law keeps house for Casady and his father. These two witnesses called on Reeves on Sunday morning while he was in bed and alone, except for the presence of his housekeeper somewhere in the house. The interview of that morning seems to have begun with a request that Reeves should help' defendant out, to which he responded that he would do what he could, but that he couldn’t do anything, and that defendant and he lived neighbors together for quite a while. He says he didn’t say anything very much, gave them no satisfaction at all that morning, except to say that he would like to help defendant out if he could, but did not want to get into it himself. According to the son-in-law and Casady, the first position taken by Reeves was merely that he never bought any beer of defendant. The son-in-law says he can’t remember when Reeves first told them that he borrowed it, but he did at some time say he borrowed it and paid nothing for it. Casady says that, when Reeves informed them he did borrow the beer, he, Casady, knew this was false. Knowing all this, these two inquired whether, if they brought a notary that Sunday afternoon, Reeves would make affidavit, and would in that live up to what he had said in the morning; and Reeves responded that he had no objection to the notary’s being brought, an,d said: “Why certainly, I could not say anything else but the truth, and I will say it. ’ ’ The notary was Laws, the attorney of defendant, and an affidavit was made that Sunday afternoon, in which Reeves said what the others say they knew to be false — that he borrowed the beer. The son-in-law asked Laws to draw up the affidavit. It may not be denied that the jury might well be suspicious of testimony of Reeves, after being advised he had made such an-affidavit. But it might well be as suspicious of the credibility of those
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Again: Defendant wanted to go and see Mr. Laws, his attorney on the trial and on this appeal. Defendant’s son-in-law claims he did not know there would be present Reeves and Daikens and Miller, who were with Reeves on the night on which it is claimed defendant sold beer, and who drank the beer obtained by Reeves, no matter how obtained. The witness Casady did not know “for sure” that Laws would be present. On reflection, he says that, while he hadn’t seen Laws that evening, before he went up to the office, he had seen defendant, and knew from him that Laws was going to the office. Nobody told Casady “to get those fellows to go to Laws’ office,” but witness “just asked them to go up there myself;” thought he would take them to the office and see what they had to say — but he didn’t talk to them after they
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Bearing both on the weight to be given the testimony of defendant’s son-in-law and Casady,. and the sincerity of the repeated declaration in the Laws office that perjury was taboo, are these facts: Both say as witnesses that no beer was got ’ of defendant. Yet, one says that, when Reeves said at the office meeting that beer was borrowed of. defendant, witness started to correct him, and does not
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Then there is evidence that, after the meeting in which this campaign for the truth was made, Reeves returned to Daikens the money furnished by Daikens with which to buy the beer.
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It does appear that Reeves named defendant as the seller, after the police had brought pressure to bear. But there is not even a suggestion that Reeves was pressed to name defendant. There was no coercion which accounts for the selection of the seller, if defendant was not the one who sold!
The state of the record fairly justifies us in refusing to give consideration to various alleged errors found printed in the abstract. But the main purpose of the rules on presentation is to save this court needless labor; and we may waive them: We are more inclined to do this in aid of liberty, and will pass upon all these assignments that can be understood. Most of them urge in some-form that defendant is not bound by what is done in his interest and is adopted by him, unless he sanctioned it in advance or was present when it was done. We have disposed of this contention elsewhere in this opinion.
(d) Reeves said that, on the night on an earlier occasion when he tried to buy beer, he drank no beer in the house of defendant; that he took it away with himself and his daughter; and that neither his daughter nor he drank it. He was then asked: “Who did drink it?” The objection of the State that this was incompetent, irrelevant and immaterial was sustained. The answer was: ‘ ‘ The two gentlemen. ’ ’ We are of opinion that the ruling excluded nothing that was material to the issues on trial.
(f) The State’s counsel said to a witness, “Now, be sure about it; say yes or no to it, if you can.” The defense
(g) Testimony of a witness is abstracted in narrative form. At one point in it, the court said, under exception: ‘Don’t sit here and evade these questions.” Since we have neither question nor answer, we are unable to say that the statement was an abuse of discretion.
(h) It is urged that the closing argument for the State was highly and improperly inflammatory, and made under conditions prevailing that tended to make it extremely prejudicial, and urged as error that the court permitted this. There is nothing in the record which as much as indicates or suggests what the closing argument was.
‘ ‘ That all such matters go to affect the credibility of the witness, but it is not for the court to say what weight, if any-, shall be given to the testimony of the witness so contra-*1121 dieted. But it ■ is for the jury to judge what effect such contradictory evidence is to have on the credibility of such witness and what weight or credence is to be given the testimony so contradicted, and the jury may entirely ignore the evidence of such witness, if in their judgment he is not worthy of belief.”
We will assume that the rejected instruction states the law. The sole question we have, then, is whether the charge given does not, in the absence of exception, sufficiently present the theory o'f instruction refused. In the sixth instruction, the jury was told that it was for it “to say, under all the evidence offered on the trial, whether or not defendant did” do what is charged. Number 10 is:
“You are the sole judges of the credibility of the witnesses and the weight to be given their testimony. In weighing the testimony of each, you will take into consideration whether corroborated or contradicted by other witnesses or by faets proven, 'and all matters appearing, fairly tending to show the weight and credit that should be given.”
It is idle to inquire whether, if proper objection had been made, we would hold that this was not the most specific and best method of charging on impeachment. None was made. In its absence, we think it should be held that the charge given does in a manner present the central thought of the instruction rejected: that, if the testimony of a witness is contradicted, it goes to his credibility, and, under certain conditions, may warrant the jury to refuse believing him at all. As said, the manner of saying so may not be above criticism, but such criticism was waived by failure to except.
It is true that two of the three cases cited by the State are not effective. The point to Lancaster v. State (Tex.), 35 S. W. 165, at 167, is merely that the following instruction has been approved several times by the Texas court:
“You should reconcile all conflicts in the testimony, if you can; but, if you cannot, you must decide which of the*1122 testimony is entitled to the greater credibility and weight, and, in so determining, you may consider the intelligence, interest, and apparent bias or prejudice of any of the witnesses, as well as their manner of testifying.”
In Deal v. State (Ind.), 39 N. E. 930, at 932, 933, there was an instruction:
“In determining the'weight to be given the testimony of the different witnesses, you should take into account the interest or want of interest they have in the case, their manner on the stand, the probability or the improbability of their testimony, with all circumstances before you which can aid you in weighing their testimony.”
The objection urged is that this invades the province of the jury, in that it, in effect, tells them, as a matter of law, that a witness who is interested in the outcome of a suit is entitled to less credence than one who is not. The court holds that this is not well taken, and that the instruction amounts to no more than a statement that it is the duty of the jury, in determining the weight to be given to the testimony of the witnesses, to consider all the evidence bearing on that question — that is, their interest or want of interest in the case, their manner on the witness stand, the probability or improbability of their testimony, with all the circumstances in evidence which may aid them in weighing such testimony. But Belt v. People, 97 Ill. 461, at 471, 472, fairly holds that an instruction in substance like the one here given takes away the right to complain that the jury was not properly charged on impeachment. And the citations of appellant do not hold that the refusal to instruct was reversible error. Indeed, we might well say they are irrelevant. State v. Helvin, 65 Iowa 289, and State v. Tweedy, 11 Iowa 350, decide no more than that, though instructions are not full enough, the complaint is not good on appeal, where no fuller ones were asked. State v. Brainard, 25 Iowa 572, and State v. O’Hagan, 38 Iowa 504, rule that it may be error to omit a charge on material points clearly made by the testimony,
“It is insisted that the court erred in not instructing the jury that this threat could be considered for the purpose only of impeaching the defendant as a witness. It is true that no specific instruction was given on this question. It was a matter of dispute on the trial, and no instruction was requested on the subject by counsel for the defendant. It is true, as urged in behalf of. defendant, that it is the duty of the court to instruct the jury upon the material question of law in the case, whether requested to do so or not. We think, in view of the record, that it must have been understood that this evidence was to be considered as impeaching only.”
The holding of State v. Hamilton, 32 Iowa 572, is that the objection that an instruction fails to present the law fully will not be considered, where it does not appear that all of the instructions are embodied in the record.
The judgment must be and is — Affirmed.