The Leon reporter. (Leon, Iowa) 1887-1930, 1903-10-29


will make clear the points of objection
made by appellant.
"Circumstantial evidence is legal evil
dence, and is not to be discredited
merely as such. It's value, and, indeed,
it's necessity in the ascertainment of
truth is unquestioned. Nothing in the
nature of circumstantial evidence rem
ders it less valuable than other evil
dence. Indeed, it has been said that in
many cases a verdict on circumStantial
evidence alone is more satisfactory as
being true and just verdict than one
founded on direct evidence. For wit
nesses may falsify, but circumstances
cannot. Men may commit a perjury,
but a fact cannot. Persons accused
have been sometimes enormously con-
Vlcted upon circumstantial evil
dence. But SO have they been upon
direct testimony. That such, in either
case has been true is reason for eau
ton, but not to discredit or disregard.
The possibility of error alike exists
whether the evidence be director cir
cumstantial."
The language here employed is not
without support in the authorities. In
deed, we assume that the learned dis
cussion OF circumstantial evidence by
Chief Justice Shaw in the celebrated
case Of Commonwealth VS.. Webster
Cush. 295 served to great extent as
the model upon which the instruction
was formed. 1t may further be said
that this court has approved instruc-
tions embodying some one or more of
the several propositions which are
arrayed in the foregoing quotation but
we think none of our own presidents go
to the full extent Of the charge here
given.
State VS.. Moelchen SO Iowa 315.
Whelan VS.. r. r.. 50 Iowa 17G.
State VS.. Seymour, 81 Iowa 70S.
The question before us is not so much
whether this statement of the nature
and comparative value of circumstan-
tial evidence is correct, or may have
proper place in a text book or thesis
upon the law of evidence as it is
whether under the practice of this
state such discussion has any legiti
mate place in instructions to jury.
In considering this proposition care
must be exercised to avoid being mislcd
by cases adjudicated in other states
where different practice prevails.
Until within comparatively recent
period it was the general rule that the
trial court could rightfully discuss the
evidence in it's charge to the jury and
express an opinion as to the credibility
and weight of the testimony offered.
That rule still prevails in some jurisdic-
tions; in others the rule which we have
adopted restricting the court to mere
statement of the law without suggest
ing any opinion upon the facts is allow
ed: while in still others the ancient
practice in this respect has been modi-
fed but not wholly changed.
For this reason many of the cases
relied upon in the argument for the
state cannot be accepted as in all re-
spects applicable here. Suppose for
instance the case before us to be pre-
cisely parallel i'll all it's facts with
Commonwealth VS.. Webster and that the
trial court had adopted verbatim the
entire charge delivered by Chief Justice
Shaw. In such case we think no lawyer
familiar with our statute and practice
would for Il moment contend that the
verdict could be sustained, even though
under the law and practice in Massa-
chusetts it would be invulnerablc.
| That charge abounds in discussion of
the evidence and directs the jury as to
the comparative weight and value of
particular facts and circumstances in a
manner which, however Just in itself,
would Of necessity be held by us an in
vasion of the province Of the jury. And
this we think the fatal error of the
! instruction we are now considering.
The case made by the state was almost
entirely circumstantial while the
defendants case consisted almost en-
tirely of direct evidence in denial and
explanation. Now if the court had said
to the jury "the defendants witnesses
may have committed perjury but the
facts and circumstances proven by the
state cannot lie" this expression of
opinion would be so clearly erroneous
as to leave no room for argument in it's
support. We have no thought that the
court intended to convey this idea, but
it remains true that such is not an ell
tirely unnatural paraphrase of it's Ian
guage and such we think would be it's
weight and effect upon the mind
of the average juror. 1t is a hold
ing up of one kind Or class of evidence
in contrast with another one being
given the merit of absolute verify and
the other discredited by the possible
ity if not indeed the suspicion of false
hood. In other words we think the jury
could hardly fail to understand from
this charge that as a matter of law or
i'm the opinion of the court the circum-
stantial evidence to which they had
listened was of greater weight and of
more convincing force than the direct
evidence. In states having a statute
like our own it has frequently been held
that the charge Of the court should be
entirely free from any suggestion as to
the weight Of evidence.
People VS.. Cogwill 93 Cal. 596.
Andrews VS.. People 60 Ill. 354.
Berry VS.. State 10 Ga. 511.
Walker VS.. State AZ Tex. 800.
johnson VS.. State ] Tex. App. 500.
White VS.. Territory, 10 Pac. 81.
Cunningham VS.. State IS Ind. 377.
Reference to any particular fact or
kind of evidence as being STRONG" or
entitled to great weight" has often
been held error.
Steele VS.. State SO Ala. 547..
People VS.. All Sing SO Cal. 400.
Boyer VS.. State SO Tenn. PIG.
A charge to the jury that "law writer's