I heartily join in the dissent filed by Justice Kindig. A rule of the character involved herein must find its origin in logic and the rule of reason. I have no objection, and there can be no objection, to the use of the phrase "lack of evidence" in an instruction given by the trial court governing the question of reasonable doubt, but I hold that it is not mandatory on the part of a trial court to use the phrase "lack of evidence." True, this court for a few years past has suggested to the trial courts of this state, in opinions filed, that it is a better practice to use the phrase "lack of evidence" in an instruction governing reasonable doubt. During the judicial history of this state, we have never until now considered it reversible error for a trial court to omit this phrase in such an instruction. One possible exception exists. State v. Smith, 192 Iowa 218. This decision on this point should be overruled. We have repeatedly refused to follow it. We should continue to follow the pronouncement inState v. Ritchie, 196 Iowa 352, l.c. 362, wherein the phrase "lack of evidence" was under discussion, and wherein Justice Weaver, speaking for the court, said:
"Indeed, the distinction between the two forms of instruction is somewhat over-refined and shadowy. A reasonable doubt, arising from the case as made by the evidence, implies an inquiry into the effect of the entire showing in support of the indictment, both its strength and its weakness; or, in other words, what the *Page 519 evidence reveals and what it fails to reveal. A juror of average intelligence could not fail to understand the charge."
The trial courts have said, in defining "reasonable doubt," that the jury must find, from all the evidence in the case, and upon nothing else, that the defendant is guilty, beyond a reasonable doubt. Every crime charged in an indictment has certain essential elements, and it is the function of the court to explain to the jury these essential elements or factors, and when this is done, the jury is informed of the law of the case. Each of these essentials must be established on the evidence beyond a reasonable doubt; and in the consideration by the jury of the evidence bearing on these essentials, if there should be a lack of evidence, it logically follows that the jury, in considering the evidence, would find a lack of evidence, if there is a lack of evidence to sustain each and every essential element of the crime charged. The phrase "lack of evidence" is surplusage, or, if used, is simply precautionary. It adds nothing. In the instant case, the sufficiency of the evidence is not questioned. It is conceded that a jury question is presented; and to reverse the finding of the trial jury on the mere supposition that, in considering "all the evidence, and nothing else," it did not consider the "lack of evidence," is a most violent presumption. Such a claim is super-technical; and in my judgment, the pronouncement by the majority is in the very teeth of the statute, since the statute provides that this court "must examine the record, without regard to technical errors or defects which do not affect the substantial rights of the parties, and render such judgment on the record as the law demands." Section 14010, Code of 1927. I find no logical reason or legal basis for making mandatory the rule as announced by the majority.
EVANS and MORLING, JJ., join in dissenting.