State v. Sauerbry , 233 Iowa 1076 ( 1943 )

I cannot agree with Division VI of the opinion of the majority herein and respectfully dissent therefrom.

As stated by the majority, the guilt or innocence of defendant depended largely on whether he knew that the heifer did not belong to Raymond. He denied such knowledge and the only evidence of his having such knowledge was circumstantial. Instruction 5 informed the jury that one's intent must frequently be ascertained by such reasonable inferences from the evidence as the guarded judgment of a cautious man would ordinarily draw therefrom and that the jury had a right to presume defendant intended to do what he voluntarily did. The decisive question was whether defendant intended to kill and dispose of a heifer that did not belong to Raymond. He did kill it, and helped dispose of it. The only dispute was over the effect to be given the circumstantial evidence as to his information concerning the ownership of the heifer.

The majority opinion recognizes that want or lack of evidence may support a reasonable doubt that would warrant an acquittal and that the court was required to so advise the jury. The majority opinion also recognizes that want or lack of evidence cannot be made the basis for a conviction. The State must prove its case by evidence, not by lack of it. Defendant contends that Instructions 1 and 9 are subject to interpretation that the State can prove its case by lack of evidence. The majority opinion recognizes that such a statement to the jury would be error but decides that no such statement was made. I cannot agree with such decision.

Instruction 9 deals with the sufficiency of the proof to sustain a conviction. The discussion of reasonable doubt therein relates to the sufficiency of the evidence to convict. The last paragraph of Instruction 9 consists of but one sentence. As quoted by the majority opinion, it commences with the words: "The proof is sufficient to sustain a conviction if it establishes the guilt of the defendant to a reasonable moral certainty * * *." The words "want of evidence," appearing at the end of the sentence might well be considered by the jury as relating to the sufficiency of the proof to convict and a reasonable moral certainty of guilt. This is particularly so because the jury was told that such moral certainty of guilt may arise from "consideration of all the facts and circumstances, as shown by the evidence, or want of evidence." Facts to support a moral certainty of guilt cannot be shown by want of evidence. An erroneous statement of the law was given, in my judgment.

Prejudice to defendant is clear. The State used nine witnesses. Defendant alone testified in his own behalf. If want of evidence was associated with scarcity of witnesses, defendant was at a decided disadvantage. The vital issue was defendant's knowledge as to the ownership of the heifer. The State's evidence was circumstantial. Defendant's testimony was brief. The jury might have felt that many details, that would aid them in reaching a decision, were omitted. The State had the burden of furnishing sufficient details to satisfy the jury to a reasonable moral certainty of guilt. Want of evidence should inure to the benefit of defendant, not to that of the State.

In the case of State v. Matthes, 210 Iowa 178, 180,230 N.W. 522, 523, the sentence of the instruction there challenged and quoted in the majority opinion herein was much like the last sentence of Instruction 9 herein. After quoting the instruction in that case, this court states:

"This instruction is somewhat ambiguous. It cannot be sustained. From the last sentence of said instruction, which we have italicized, the jury may well have understood that if, upon a full and fair consideration of all of the evidence, or from alack of evidence upon any material fact, they were abidingly satisfied and convinced of the guilt of the appellant, then they were convinced beyond a reasonable doubt. The correct rule is, of course, that if, from a lack of evidence, the jury entertains a reasonable doubt of the guilt of the defendant, they are toacquit him; but this is quite a different thing from convicting a defendant upon a lack of evidence upon any material fact. The jury might readily have construed this instruction to place a burden upon the appellant which the law does not require him to assume. * * *

"The instruction in question would seem to authorize a jury to be convinced beyond a reasonable doubt from a lack of evidence upon any material fact. Such cannot be the law, and the instruction as given was not only erroneous, but obviously was prejudicial to the appellant. It was error to give it."

The foregoing language would seem to be applicable to the record herein. I would hold that the giving of Instruction 9 was reversible error.

It may be that defendant was guilty and that his conviction is a just result. But, under our way of life, he was entitled to a fair trial. He should not be deprived of his liberty without it. He testified to facts which would warrant an acquittal. The jury passed judgment on his testimony. To aid them in performing such function, the court was required to correctly instruct them on the law. The instructions were not correct, in my judgment. Instruction 9 was erroneous and highly prejudicial. It vitiates the verdict. I would reverse.

WENNERSTRUM, J., joins in the foregoing dissent.