State v. Perkins

I am unable to concur in the foregoing opinion so far as it approves the refusal of the trial court to instruct the jury as follows:

"You are instructed that if you find that the evidence introduced by the state or by the defendant or both, or that the lack of evidence is sufficient to raise in your minds a reasonable doubt that the defendant committed the offenses alleged, you must acquit the defendant."

This court in State v. Herwitz, 109 Wn. 153, 186 P. 290, definitely committed itself to the rule that in criminal cases it is error for a trial court to refuse to instruct the jury that a reasonable doubt might be raised in their minds because of the lack of evidence. We there stated in no uncertain words that such an instruction

". . . ANNOUNCED A CORRECT PRINCIPLE OF LAW WHICH THEDEFENDANT WAS ENTITLED TO HAVE BROUGHT TO THE ATTENTION OF THEJURY."

The majority opinion states that the "Herwitz case does not state the majority rule as of the time it was decided or now." What, may I ask, has that to do with this case? We have the rule here. Why not follow it?

The majority, on p. 867, states:

"That an instruction requesting the court to instruct that a reasonable doubt may arise from a ``lack of evidence' should be given, is, therefore, squarely held in State v. Herwitz, supra, and it was further said that such an instruction ``announced a correct principle of law which the defendant was entitled to have brought to the attention of the jury.'"

Then, on p. 868, I find the following:

"We think that the case of State v. Herwitz, supra, does not hold that, when instructing on reasonable doubt, the failure to instruct that it may arise ``from a lack of evidence,' constitutes reversible error."

I fail to find any consistency in the two statements. In the first, the majority approves the rule, and in the second, it repudiates the first statement.

The majority makes the point that the court in reversing the trial court in the Herwitz case found "two other very serious errors." Many, many cases will be found in the volumes of our reports, and reports of other courts, in which an appellate court has reversed trial courts and based its decision upon several errors. The fact that there were "two other very serious errors" upon which this court based its opinion, does not in the least destroy the force and effect of the court's holding relative to the refusal to give the instruction relative to the lack ofevidence.

The majority opinion then goes on to say that the views expressed in the Herwitz case "were pretty well weakened, if not wholly repudiated, in the opinion in State v. Costello,133 Wn. 170, 172, 233 P. 307." An examination of the record in that case, in which the Herwitz case was not even mentioned, brings to view the fact that no assignment of error was predicated upon the refusal of the court to give an instruction such as proposed in the case at bar. Neither did the defendant Costello propose an instruction such as proposed in this case. This proves that the question relating to the giving of an instruction, as proposed in the instant case, and as urged in theHerwitz case, was not before the court at all in the Costello case.

In the case of State v. Krug, 12 Wn. 288, 41 P. 126, appellant did complain because the court in its instruction omitted to state that a reasonable doubt could grow out of the want of evidence. However, appellant in that case did not, as here, propose an instruction relative to the lack of evidence.

This short review of the three cases cited by the majority proves that the statements made in the Krug and Costello cases were mere dicta.

The majority, then, without citing other cases, attempts to impeach the holding in State v. Anderson, 209 Iowa 510,228 N.W. 353, 67 A.L.R. 1366, by citing and quoting at length from the dissenting opinions. When, may I ask, did a dissenting opinion from a sister state become the law of this state? The only purpose or reason for using the dissenting opinion of the judges of a sister state as a basis for "reversing" overruling an opinion of this court which has stood as the approved law in this state for twenty-nine years is that the majority could not find any case in the United States upon which to base an opinion. I quote a portion of the majority opinion in the Anderson case to show just what the law is in the state of Iowa:

"The appellant excepted to the court's instruction on reasonable doubt, and the same is now urged as a ground for reversal. In this instruction, the court told the jury:

"``All of the matters left for your determination are to be determined by you alone from the evidence before you, and after a full and careful consideration of the same.'

"All matters left for determination necessarily included the question of re[a]sonable doubt. Appellant's contention is that this instruction did not include, but excluded, a reasonable doubt which might arise from lack or want of evidence. It is apparent that the appellant is right in his contention; for the court, in the instruction, in terse language, states that the question of reasonable doubt, as well as all other matters for their determination, is ``to be determined by you alone from the evidence before you.' We have repeatedly refused to approve an instruction on reasonable doubt which excludes a reasonable doubt arising from the lack or want of evidence. In State v. Smith,192 Iowa 218, we said:

"``This instruction [one on reasonable doubt] is complained of. It fairly states that a doubt, to be reasonable, must, for one thing, be caused by the evidence adduced. We cannot approve this.'

"In State v. Smith, 194 Iowa 639, we declared:

"``Again, the instruction is faulty in advising the jury that a doubt must arise from a consideration "of all the evidence in the case." In State v. Smith, 192 Iowa 218, referring to an instruction of this kind, we quoted with approval the following from 16 Corpus Juris 997, Section 2411: "As a general rule, an instruction that a reasonable doubt must be one suggested by, or arising out of, the evidence adduced is erroneous, as it excludes all reasonable doubts that may arise from the lack or want of evidence." A reasonable doubt may, and generally does, arise from the lack or want of evidence in the case. We cannot approve of an instruction in this form.'

"In State v. Tonn, 195 Iowa 94, we find the following pronouncement:

"``We cannot approve of this instruction. A reasonable doubt is not necessarily one that arises from a consideration of the facts and circumstances as shown in evidence in the case. A reasonable doubt, as a general rule, arises from a want of evidence.'

"In State v. Flory, 198 Iowa 75, we declared:

"``We have repeatedly held that reasonable doubt may well arise from lack of evidence, and that an instruction which omits this element will not be approved.'

"In State v. Tennant, 204 Iowa 130, we said:

"``It is, of course, elementary that a reasonable doubt may arise from the absence of evidence * * *. Instructions on the subject of reasonable doubt should be so framed as to make it clear to the jury that a doubt may arise both from the absence of evidence and from the evidence introduced.'

"In State v. Patrick, 201 Iowa 368, the trial court gave the following instruction:

"``You are to try and determine this case according to the evidence produced and submitted to you in open court on this trial, and the law given you in charge by the court in these instructions, and upon nothing else.'

"We there said of this instruction:

"``Complaint is lodged against this instruction in that it unduly limits the jury in the consideration of the case, as far as the evidence is concerned. It says, in words, that the case is to be determined according to the evidence produced and submitted in open court and the law given in charge by the court, and upon nothing else. We are disposed to think that this complaint has merit. The jury has the right not only to consider the evidence before it, but to consider the want or lack of evidence. It is entitled to consider all fair and reasonable inferences and deductions which may be made from the evidence before it; but to say that it must consider only the evidence before it and the law as given by the court would apparently exclude from its consideration the above matter. If the instruction is to be given on a retrial of the case, it should be remodeled in accordance herewith.'

"It will be observed that the import of the instruction condemned in State v. Patrick, supra, is the exact equivalent of that portion of the instruction given in the instant case as a part of the instruction on reasonable doubt which is hereinbefore quoted. If, upon a retrial of the Patrick case, the court had given the condemned instruction, and an appeal had been taken to this court, would there have been any hesitancy in reversing the trial court? The writer of this opinion is inclined to the belief that we would have unhesitatingly reversed the trial court for not following our directions. We condemned the instruction because it is erroneous, and the instruction in the instant case is subject to the same criticism and condemnation. We have declared in the foregoing pronouncements what we recognize to be the truth: that a reasonable doubt is not necessarily one that arises from a consideration of the facts and circumstances as shown in evidence in the case, and that a reasonable doubt, as a general rule, arises from a lack or want of evidence. We refuse to approve instructions on the subject of reasonable doubt which exclude the element of lack or want of evidence. If we do not or cannot approve an instruction, we necessarily disapprove it. When we disapprove or cannot approve an instruction, it is because it is erroneous."

The majority opinion handed down in the Anderson case was followed and reaffirmed in State v. Grattan, 218 Iowa 889,256 N.W. 273; State v. Parkin, 230 Iowa 991, 299 N.W. 917; and,State v. King, 232 Iowa 16, 4 N.W.2d 244.

See, also, Smith v. State, 135 Fla. 835, 186 So. 203.

It is of interest to note that, in the Grattan and Parkin cases, eight judges signed the opinions, and that all of the judges concurred in the opinion written in the King case.

An annotation in 67 A.L.R. 1372 says:

"It is generally held that the failure to include the phrase ``lack of evidence' or its equivalent in an instruction on reasonable doubt is erroneous."

True, the editors of A.L.R. state that only a few cases pass on whether such error is reversible. That statement is quite true. The reading of the cases cited in A.L.R. show that in a great many of them the question was not squarely before the court, or the instructions, while not using the words "lack of evidence" used other words which had the same meaning.

I desire to call attention to a few cases, aside from those in Iowa, which distinctly pass upon the question presented here.

In Carwile v. State, 148 Ala. 576, 39 So. 220, defendant was convicted of the crime of murder. The conviction was reversed by the supreme court of Alabama because of the failure of the trial court to give a requested instruction that:

"The absence of sufficient satisfying evidence before the jury may offer ground for reasonable doubt of the defendant's guilt."

In the case of Gaston v. State, 161 Ala. 37, 49 So. 876, the court reversed the conviction on the ground that the trial court erred in its refusal to instruct that the absence of sufficiently satisfying evidence may be a ground of reasonable doubt of defendant's guilt.

The Alabama court of appeals, in Fealy v. Birmingham, 15 Ala. App. 367,73 So. 296, reversed the conviction because the trial court refused to charge that:

"The absence of sufficient satisfactory evidence before the jury may afford grounds for reasonable doubt of defendant's guilt."

The best statement of the rule and the reasons for it, are found in State v. Blue, 136 Mo. 41, 37 S.W. 796, where it was said:

"An instruction given by the court defining reasonable doubt to be ``a substantial doubt growing out of and consistent with the evidence' is criticised by defendant on the ground that it is misleading, and too narrow, and excluded all reasonable doubt that might have arisen from the lack or want of evidence.

"There seems to be much force in this contention. The instruction is not only misleading, but manifestly erroneous, in that it deprived defendant of the benefit of any reasonable doubt as to his guilt that might have arisen from the insufficiency of the evidence or upon a full and fair review of all the evidence in the case. It is upon this theory that such an instruction is justified, and not upon the idea of the doubt of defendant's guilt growing out of and being consistent with the evidence. His guilt must not only grow out of the evidence as it were, but it must appear therefrom beyond a reasonable doubt, and unless it was so shown he was entitled to an acquittal. It will not do to say that defendant's innocence must appear from and be consistent with the evidence; by this, the burden was cast upon him, while it devolved upon the state to show his guilt beyond a reasonable doubt. If there was a substantial doubt of defendant's guilt arising from the insufficiency of the evidence he was entitled to an acquittal, and the court should have so instructed."

In Kelly v. State, 112 Miss. 245, 72 So. 928, the following instruction was granted for the state:

"The court instructs the jury for the state that by a reasonable doubt is meant not a mere speculative doubt or vague conjecture, mere supposition, or hypothesis, but such a doubt as reasonably arises out of the testimony; a doubt for which a reason can be given."

The court said, in reversing a judgment of conviction:

"Besides being generally objectionable in attempting to define a reasonable doubt, the instruction is erroneous in declaring that a reasonable doubt must arise out of the evidence when it may arise also from the want of evidence."

It seems to me, from every legal standpoint, that the lack of evidence is something beneficial to the cause of the defendant, and the jury should be told of this in plain terms, especially if an instruction is asked for along that line. If there is a lack of evidence on the part of the state, certainly there is a failure of proof. Evidence, we know, need not be positive, but it may be largely circumstantial. A lack of evidence, however, means a lack or failure of both kinds. How can the jury ever be convinced from all the evidence before them, beyond every reasonable doubt, without taking into consideration the lack of evidence? Clearly, if there is a case presented to the court and jury in a criminal cause and there is a lack of evidence, there can then be no basis for the jury upon which they may rest their conviction. Conviction must find its predicate on the evidence and not on the lack of evidence.

Courts instruct the jury on the necessary essentials of a crime; that is, they instruct the jury that the state must prove certain things beyond a reasonable doubt. If the state fails to present evidence along these lines, then there is a failure of proof and the jury should be entitled to know that that failure of proof or lack of evidence is sufficient to raise in their minds a reasonable doubt.

Counsel, in presenting their client's cause to the jury, should be in a position to point out that there is a lack of evidence or failure of proof, and in that way possibly persuade the jury that there is a reasonable doubt of the defendant's guilt.

The rule announced in the Herwitz case is a proper one. It is one that was, and is, in accord with the announced holding of the majority of courts in the United States. I can give no better reason for abiding by, and reaffirming, the rule than given by the supreme court in State v. Grattan, 218 Iowa 889,256 N.W. 273, in language which reads as follows:

"It is urged in substance that the rule announced in the Anderson case is unduly lenient to the guilty defendant, whose punishment is long overdue. The Constitution is professedly comprehensive and liberal in its attitude towards a defendant accused of crime. In the eyes of the Constitution, he is innocent and continues to be so until his guilt be proved. The objective of the Constitution is not to favor the guilty but to protect the innocent against the hazard of false punishment. In the pursuit of this objective, it takes large chances of favor to the guilty rather than to imperil the innocent. Better that the guilty escape than that innocence be ravished. Until guilt be proved, the Constitution awards asylum to the innocent and guilty alike under the same roof. To each of them legal protection is guaranteed. If a guilty defendant is not entitled to the protection guaranteed by the Constitution, then no defendant is. Nor can the legal guilt of a defendant ever be known until his trial has been had under the protection of the Constitution."

By various opinions, of which this is one, this court is slowly but surely taking away the rights of individuals accused of crime. The only recourse is costly appeals to the supreme court of the United States.

In my opinion, the court committed a reversible error in refusing to give the instruction relative to the lack of evidence. The case should be reversed and a new trial granted.

SCHWELLENBACH, J., concurs with SIMPSON, J.