State v. Hemrick

Seevers, J. This cause was submitted on written, transcript. There is a paper before us which does not constitute a part of the transcript, nor is it referred to therein. It is not certified to by the clerk. It purports to set out a portion of the evidence introduced on the trial, and it is certified to by Thos. P. Dering, who states that he is the official reporter of the district court in and for the eleventh judicial district. The attorney-general insists that this paper cannot be recognized by this court, because it is not properly authenticated ;<• and this we think must be so. The only way oral evi 415 dence introduced on tbe trial of a cause can be preserved and identified, for tbe purpose of an appeal to tbis court, is by a bill of exceptions, signed by tbe trial judge. Tbe assignment of error, therefore, argued by counsel, based upon wbat purports to be a portion of tbe evidence so certified, cannot be considered, simply because there is not sufficient proof that such evidence was introduced. II. Tbe transcript before us contains only tbe indictment, tbe instructions, verdict, judgment, and tbe proceedings of the court prior to commencing tbe trial. The appellant complains of tbe following instructions given the jury: “If the evidence offered and introduced on tbe part of tbe state, taken above, is sufficient to establish the defendant’s guilt beyond a reasonable doubt, then it is incumbent on tbe defendant to explain tbe facts so proved by tbe state, or establish bis defense, and this may b'e done by a preponderance of tbe evidence; that is, if tbe circumstances so proved by tbe defense be established by a preponderance of tbe evidence, it necessarily leaves tbe material facts in dispute reasonably doubtful. If tbe evidence of tbe state fails to show tbe defendant guilty, he is entitled to an acquittal, unless the evidence introduced on tbe part of the defendant, which you deem creditble and of any weight, so strengthens tbe proofs offered by tbe state as to leave no reasonable doubt of his guilt. If, upon the whole proof, and under all tbe evidence, there is reasonable doubt of defendant’s guilt, be is entitled to an acquittal.” Tbe objection made to tbe foregoing instruction is, that tbe defendant is required to establish bis defense by a preponderance of tbe evidence. Conceding tbis to be so, then tbe question is —as we do not have tbe evidence before us — -whether the instruction can be sustained as to any possible defense relied on by tbe defendant. Tbis court lias held that, as to the defense of insanity, or alibi, tbe foregoing instruction would be correct. State v. Hamilton, 57 Iowa, 596; State v. Bruce, 48 Id., 530. Following these cases, tbe judgment of the district court is . ' Affirmed.