#### State of Iowa, Appellee, v. Leon Cartwright, Appellant.

1 TRIAL: Objections — Necessity for Evidence of Fact. An objection based upon an alleged fact will be disregarded, when the record is barren of any evidence of such fact.

2 CHIMIN AL LAW: Alibi — Cautionary Instructions. Instructions to tbe effect that an alibi is easily manufactured, and that the *580proofs pertaining thereto should be scanned with care and caution, are proper.

3 CRIMINAL LAW: Accomplice — Insufficient Evidence. Evidence held insufficient to show that the witness in question was an accomplice; and, therefore, no occasion arose for instructing in reference thereto.

*Appeal from Boone District Cowrt.*— E. M. Wright, Judge.

November 15, 1919.

Rehearing Denied February 23, 1920.

The defendant was indicted upon charge of maliciously threatening to injure the property of one Anna Carson, with intent thereby to extort money from the said Anna Carson, against her will. To the charge, the defendant pleaded “not guilty,” and, upon trial to a jury, was convicted. From the judgment entered on the verdict, he ap*peals.*

Affirmed.

*W. W. Goodylcoonts,*for appellant.

*II. M. Havner,*Attorney General, *F. G.*Davidson, Assistant Attorney General, and *Charles W. Lyon,*for ap-pellee.

Weaver, J.

The points made by counsel for a reversal of the judgment of conviction are as follows:

1- : necessity fact.eTldence °f I. The record shows that the trial of the defendant was begun on December 5, 1918. On that day, a jury was impaneled and, after the introduction of the State’s evidence in chief, and after a beginning had ^een made upon the testimony for the defendant, the court was adjourned to December 16, 1918, because of sickness in the family of a juror. On the date last named, a further adjournment was made to December 30, 1918, because of the absence of jurors. On December 30, 1918, the defendant ob*581jected to proceeding further with the trial, because, after the last adjournment of court, and. since the trial began, one of the members of the trial jury had been appointed administrator of the estate of one Elliot, deceased, and the firm of which J. R. Whitaker, assistant attorney for the State, was a member, was representing said administrator in that proceeding. Mr. Whitaker, being present in person, stated to the court that he had no personal knowledge of the facts of the matter referred to. The objection was thereupon overruled, and appellant assigns error thereon.

There are several good reasons why this exception cannot prevail; and of these we need only suggest one, which is that, so far as the record shows, the alleged fact upon which the objection was based, does not appear to have been admitted, or any evidence thereof submitted to the court.

II. Objection is also raised to several paragraphs of the court’s charge to the jury, because they are obscure, if not ambiguous, and do not clearly and distinctly present to the jurors the simple essential questions upon which they, were required to pass.

As to most of these paragraphs, counsel do not claim, nor do we think it can fairly be said, that, when read with an intelligent desire to ascertain their meaning and effect, they, or any of them, state an erroneous proposition of law. These instructions have special reference to what is meant by the words “intent,” “motive,” and “malice,” and, if open to any objection at all, it is not because they are incorrect, but because the attempt to define and illuminate the meaning of simple words of common, everyday use tends of tener to confuse than to help the mind unaccustomed to critical definition of terms. We have read the court’s charge in this respect with much care, and we find therein no prejudicial error.

*582
      2- aiibf^caution^: tionStostruc’
      *581III. The court gave an instruction upon the defense of alibi; and in so doing, made use of the language found *582in some of our eases, cautioning the jury that it is a defense “easily manufactured,” and that the Pr0°fs should be “scanned with care and caution.” That this cautionary instruction may properly be given, has been affirmed by this court in several cases. *State v. Whitbeck,*145 Iowa 29, 41; *State v. Worthen,*124 Iowa 408. The writer of this opinion is convinced, however, that the rule is a vicious one, and ought to be displaced by one more in accord with enlightened justice. With such an instruction, the defense of alibi, though supported by an array of witnesses of the highest character, is sent to the jury defaced with the stigma of judicial suspicion, which is quite sure to rob it of all value for him who offers it. Such, however, is not the view of the court; and the exception to the charge in this respect must be overruled.

3' accomplice : sufficient evidence. IV. Counsel argue that the State’s case rests upon the testimony of an accomplice, who is not corroborated, as required by law. This question does not seem to have been raised or ruled upon in the court below, and does no^ as we fairly arise in this n{í5¡0

There appears to be no evidence which tends to show that the boy Johnson, to whom reference is made by counsel, was a confederate or accomplice in the alleged crime. The facts, so far as shown, are that the threatening letter was first seen tacked to a door of Anna Carson’s house. In it was a warning to her to enclose $800 in a bundle, and leave it by a post at a certain corner of her lot before 11 o’clock of the following Saturday night. Mrs. Carson took the letter to an officer, and it was planned to have her make up a dummy package of paper, and leave it at the designated place, while a watch was set for developments. Soon after 11 o’clock of Saturday night, the watchers saw Voyle Johnson, a boy of 13 years of age, *583approach the comer and pick np the package, and at once arrested him. He said to his captors, and testified on the trial, that, on the evening in question, he met the appellant on the streets, and appellant arranged with him first to go past the designated corner, and see if there was a package there, and, if so, to report to appellant. This he did, and appellant then wished him to get the package, and directed him how to approach the place; and it was while carrying out these instructions that he was arrested.

There is no evidence that the boy had any connection with' the writing or sending of the letter, or had any knowledge or notice of what appellant expected to find in it. On this showing, there seems to be no sufficient ground for treating the young witness as an accomplice, or for applying the rule as to the testimony of accomplices to the case made by the State.

V. . Aside from the question raised as to the testimony of an accomplice, it is not argued tha-t the verdict of guilty is not supported by the evidence. Nor, indeed, can it be. If the jury believed the State’s witnesses, a conviction was inevitable.

That a man of average common sense, who has maintained a fair reputation among his neighbors for integrity of character, should have conceived and attempted to carry out such a harebrained and preposterous criminal enterprise, hoping to elude detection and punishment, is almost incredible; and yet the history of crime is replete with examples of like folly.

We find nothing in the record upon which we are authorized to disturb the verdict, and the judgment appealed from *is*— Affirmed.

Ladd, C. J., G-atnor and Stevens, JJ., concur.