State v. Miner , 213 Iowa 193 ( 1931 )

I am unable to concur in the majority opinion. The instruction complained of and quoted is, in my judgment, a correct statement of the law. It is in almost the exact language of the statute. The omission of the word "knowledge" or "knowingly" from the instruction is not error. Knowledge is not an element of the offense charged in the indictment. If the appellant was an accessory, she was an accessory before the fact and participated directly in the commission of the crime, if a crime was, in fact, committed.

The charge against the appellant in State v. Empey, 79 Iowa 460, was larceny committed by receiving stolen property. The statute then, as well as Section 13042 of the present code, made knowledge a specific element of that crime. State v. McCarty,210 Iowa 173, involved a charge of larceny. Out of an abundance of caution and based upon a mere scintilla of evidence, the court gave an instruction in which the word "knowingly" was employed. The word "knowingly" in the instruction given was to meet the possibility of the testimony that the defendant received the property from one Chapman, who, all of the evidence showed, was concerned in the commission of the crime. In such case, knowledge of the larceny was an essential element of the crime.

Its use was proper in both cases because knowledge was an essential element of the crime charged and sought to be established by the evidence. It may be conceded that one may aid and abet another to commit a crime without having the slightest intention of committing a public offense. The absence of knowledge in such case tending, as an evidential fact, to negative a criminal intent may be a complete defense to the charge. Even with this concession, I am still of the opinion that the instruction is not erroneous. It may be assumed that it would have been proper for the court to have given an instruction on the question of knowledge and it may be that it was error for the court to fail to incorporate such an instruction in the charge to the jury, but this is immaterial. The challenge, and the only one, is to the accuracy of the instruction actually given. It may even be conceded that the word "knowingly" or "knowledge," if necessary to a correct charge, may have been properly included, had the court seen fit to do so, in the instruction under discussion, but this does not make out error therein.

It is my contention that the court was not bound to use the term "knowledge" or "knowingly," which are not necessary elements of the offense, in defining the crime to the jury.

EVANS and De GRAFF, JJ., join in this dissent.