(dissenting). — Aside from an objection to the conduct of the jury, after retiring to consider their verdict (which objection we all agree is without weight), counsel in argument before us, made but one point, and that ivas, that the verdict was against the evidence, or rather, that there was no evidence to warrant the conviction. And to this point alone they* directed the main part of their argument.
The foregoing opinion fails, in effect, to find for defendant on this point, and still reverses the judgment upon a ground not made, and for an error which the court below never had an opportunity to correct. For reasons which I feel bound to briefly state, I cannot concur in this conclusion. In the first place, I remark, that I entertain no reasonable doubt as to the sufficiency of the evidence to warrant this conviction. And, so holding, I would have no difficulty, even under the rule laid down by the majority opinion, in disregarding the omission of the court below to give full and proper instructions. But, in my opinion, as the case stands, I have only to inquire whether *583the jury had evidence sufficient to justify the verdict. .And of this I entertain no doubt whatever. There was conflict, I concede. The case was warmly contested. There are circumstances aside from the mere opinion of ■experts, or those familiar with Austin Brainard’s handwriting, tending to show defendant’s guilt. To these, and to the testimony at length I might and would refer if necessary. The case goes off upon other grounds, ■however, and to these I direct my attention. It is said, •that there was evidence tending to show, that the signatures in question were written by the uncle and delivered ■to the defendant in blank ; that if he had any defense it was this, and that in some way the jury should have been directed to it, and the law on this subject called to their attention.
I am probably not mistaken in saying that, if this had been done, the judgment would have remained undisturbed.
The practice and rule recognized by this view of the case I cannot sustain, and hence my dissent.
I concede the duty to decide criminal appeals according to the very justice of the matter. But I am not at liberty to disregard well established rules upon some vague conception that possibly there has not been a fair, deliberate trial. I assume, that counsel, familiar with their client’s cause, and of the true grounds of his defense, know what line of policy to pursue, and it is not for me to find fault with it, nor to give a new trial to enable them to investigate a point, which, if insisted upon in argument before the jury, they never in any manner called to the attention of the court. I may legitimately, and must properly, search the record to sustain a judgment, but no court should indulge in presumptions to find error. It is no part of my duty to help out the mistakes of counsel. And now, turning to the case, I *584repeat, that counsel, in their argument, never even suggested that the court below should have directed the attention of the jury to the evidence tending to show that the uncle delivered to the defendant his blank signatures. They never even remotely hinted that they were prejudiced by this failure.
Then again, they asked no instructions upon this subject. The rule was settled as early as 1851 (McCausland v. Cressap, 3 G. Greene, 161), that if the court’s charge is not sufficiently explained, the attorney should ask more explicit instnictions. And this rule, so far from being departed from, has been directly recognized in more cases than one. See Ault v. Sloan (4 Iowa, 508), and Miller v. Bryan (3 id. 58), where it was held, that, if an instruction is given which is not erroneous, but which does not as fully state the law as it might be made to do, by a qualification, a party cannot complain if he fails to ask such qualification. So in The State v. Tweedy (11 Iowa, 350), it was said, that, when a general rule was correctly given by the instructions, but without qualifications which were claimed to be material under the actual circumstances of the case, it will not be considered error unless such qualifications were asked by the party complaining, and refused. In another case, where the court below grouped the facts on one side, and said that these, if shown, would make out the offense, it was held that the facts thus grouped were all against the defendant, yet the method adopted was not erroneous, as it was competent for the defendant to ask and have given an instruction grouping the faets in his favor. The State v. Carnahan, 17 Iowa, 256; and see, further, Davenport v. Cummings, 15 id. 219; Eyser v. Weissgerber, 2 id. 463. Other cases might be cited, but these are sufficient to show the uniform practice of this court. And this practice and the correctness of these views, I may add, find most abundant support in *585still other rules which have almost become axiomatic in this court. Thus, questions not raised in and passed upon by the District Court cannot be reviewed here. Exceptions must be taken at the time, and error and prejudice must affirmatively appear. So again, errors are not favorably regarded which are based upon the negligence of the party urging them. The court is only bound to decide questions raised, and the neglect of the complaining party is never an available ground of error. Every presumpiton will be indulged in favor of the judgment below, and a state of facts will not be presumed in order to find error.
I shall not stop to cite the many authorities — found in almost every volume of our Reports, and, indeed, of every State — to sustain propositions so plain. Nor shall I, to justify the equally clear proposition, that parties accused are in this court bound by the line of defense assumed for them by then’ counsel in the court below, and that it is no part of our duty to grant a new trial because we may conceive they were mistaken as to the true points of their case. Or, applying this last thought to the case before us, as counsel esteemed it safer for their client’s interest to put his defense on other grounds, and asked no instruction upon the defense which the majority says is the only one he has, if any, I prefer to leave them to determine that, instead of taking the case out of their hands. They doubtless had good reasons for failing to call the attention of the jury, in the instructions, to this part of the evidence. They, beyond question, esteemed it untenable, else they would have claimed advantage from it. When the case is retried, I can only conclude that counsel, as they did on the first trial, will put their defense upon the single ground, that these notes are genuine, that they are the defendant’s property, given to him for a good and valuable consideration. This has been his claim, persistently *586urged from the beginning, and the testimony as to his having notes signed in blank, was at no time, as far as I can see, relied upon as a defense. Indeed, the testimony on this subject seems to be rather incidental — elicited without purpose, rather than as a fact having any material weight in the case.
But I am referred to Owen v. Same (22 Iowa, 270), and the State v. Benham (23 id. 154), as justifying the disposition made of this case by a majority of the court. In the first case there was an entire agreement on the part of the court, that the verdict did not effectuate justice; no instructions whatever were given; the case was complicated, involving legal questions novel in their character, and unsettled in this State; the motion for a new trial was based in part upon the ground, that, from the nature and amount of the controversy it was apparent that justice had not been done; and it was expressly held, that the judgment would not have been reversed if the result had been correct under the testimony. So the second case “ was peculiar, and in view of the evidence, not a little difficult, and there was special necessity for great care in the instructions to the jury.” And yet, I understand the judgment below was reversed because the charge of the court was, in one or more instances, 'erroneous, or calculated to mislead the jury. Now, in this case there is nothing complicated, no question involved not reasonably well settled. The line of defense was, that these notes were made by the uncle. The State claimed that the signatures were not genuine. Here was a simple, plain issue of fact, and upon it the case went to the jury. To this question, and this alone, the defendant directed his instructions. To these instructions, as modified, there is no semblance of objection. But after the jury, upon the whole testimony, found for the State; after the counsel were fully heard before the *587court upon the motion fora new trial (which contained no suggestion that the instructions were not sufficiently full and specific); after they have urged a reversal because the verdict was against the evidence, the case is reversed and remanded upon another ground — a ground which, it séems to me, oilers a premium for negligence, is calculated to mislead and entrap parties, and which can only tend to protract litigation, and render the administration of justice uncertain. For I am sure I cannot tell how much a judge, when not requested, should say to a jury; how specific he must be in his charge; how much he must assume for the negligence or mistakes of counsel, to meet the rule which leads to this reversal. The plainer and safer rule is, unless satisfied that injustice has been done or will result from allowing the verdict to stand, to conclude that counsel put the case to the jury upon their instructions in the manner which they conceived best calculated to subserve the interests of their client; and not to presume they were mistaken, and that the court failed in the discharge of its duty. If the result is unjust, if the conclusion is unwarranted, let us say so, and not award a new trial to have investigated a question which counsel, in the exercise of their best judgment, and with a full knowledge of all the facts — facts which they knew and we cannot know — have thus far deemed of no importance.
For these reasons I cannot concur in the foregoing opinion. I think the conviction, upon the record, was right, and should not have been disturbed.