
    State of Iowa, Appellee, v. Truman Comer, Appellant.
    CRIMINAL LAW: Reasonable Doubt — Erroneous Instruction. It is 1 erroneous to instruct that “tbe reasonable doubt which entitles an accused to an acquittal is a doubt reasonably arising from all the evidence, or lack of evidence, in tbe case.”
    CRIMINAL LAW: Presumption and. Burden of Proof — Imposing Bur-2 den on Accused. No burden of proof can be properly imposed on an accused to show, by a preponderance of evidence or otherwise, the existence of a fact which inheres in a plea of not guilty.
    INTOXICATING LIQUOKS: Instructions — Construction of Statute. 3 Instructions are proper which direct the jury to the fact that courts and" juries shall so construe the law relative to intoxicating ' liquors as to prevent evasions, — but with proper admonition that the State must prove all material allegations beyond a reasonable doubt. •
    
      Appeal frprn Union District Covert. — A. R. Maxwell, Judge.
    October 17, 1924.
    The defendant was charged with the crime of manufacturing, owning, and having possession of certain instruments intended for use and capable of being used in the manufacture of intoxicating liquors. He-was convicted,, and appeals. —
    Reversed.
    
      Higbee & McEniry, for appellant.
    
      Ben J. Gibson, Attorney-general, Maxwell A.- O’Brien, Assistant Attorney-general, and E. L. Carroll, County Attorney, for appellee.
   Faville, J.

— Appellant is a tenant farmer. His premises were searched by officers, who discovered a road leading from the farm buildings along the fence between the barn and a cornfield, and a track leading from this road about forty ór fifty feet to a spot where an "oil stove, four big barrels of mash covered with "blankets and thermometers, and a barrel of water connected with a coil,"were found. The evidence showed that the instruments'so found were intended for and capable of being-used in the manufacture of intoxicating liquors. Appellant was not with -the officers at the time of "the search, but it is contended thát he "was" engaged in driving some cattle out of the cornfield. He appeared" at the house shortly afterward, and before the officers left. He testified in his own behalf' to the effect that he had no knowledge that the instruments in question were located upon the premises occupied by him.

I. In instructing the jury on the question of reasonable doubt, the court unfortunately used an instruction which we have repeatedly condemned. He told the jury:

“You are instructed that the reasonable doubt which entitles an accused to an acquittal is a doubt of guilt reasonably arising from all of the evidence or lack of evidence in the case. ’ ’

As early as the case of State v. Phillips, 118 Iowa 660, we condemned this instruction, and said that it “is unfortunate, and should be avoided, as being open to the interpretation that the DWF starts with the primary obligation to eon-the accilse<l unless some reasonable doubt arises to justify a verdict of not guilty.”

Again, in State v. McCausland, 137 Iowa 354, we disapproved of an instruction containing this phrase. In the quite recent case of State v. Smith, 194 Iowa 639, we said:

“This instruction should not have been given in this form * * * and trial courts should avoid the use of this unfortunate phrase. ’ ’

In view of these repeated pronouncements by this court, there is no excuse for a trial court in this state to give this instruction. There is no justification in any case for a trial court to give a disapproved and improper instruction, even though it may not be the basis of a reversal. Instructions should be given correctly, and not as close to the line as can possibly be tolerated.

We follow the rule of the McCausland case in this instance, and hold that, because of the entire charge, when the instructions are read together^ the erroneous expression in this instruction was not reversible error in this particular case. We are not to be understood as holding that it may never be regarded as reversible error to give it.

II. The court instructed the jury to the effect that, if they found “from a preponderance of the evidence that the defendant had no knowledge of the existence of said instruments, and did not consent that they should be placed upon his premises, ’ ’ then their verdict should be for the-defendant.

There is no conflict whatever in the evidence that the unlawful instruments were found upon the farm occupied by and in the control of appellant. His defense was that he had no knowledge that the instruments were located upon his premises. The court erred in instruct-mg the jury that it must find from a preponderance of the evidence that the defendant had no knowledge of the existence of said instruments upon the premises so used and occupied by him.- The burden rested upon the State throughout to establish the guilt of appellant beyond a reasonable doubt. It proved, that the instruments were found upon the premises used and occupied by appellant, in close proximity to the farm buildings, and near a path and road leading from the farm buildings to their location, and proved their apparent purpose. Appellant testified to the effect that he knew nothing of the instruments’ being there. The burden did not shift to appellant. His defense was not an affirmative defense, as that term is sometimes used. It inhered properly in his plea of not guilty. The court erred in instructing the jury that appellant must prove a want of knowledge by a preponderance of the evidence. Such is not the true rule, as applied to a case of this kind.

III. Appellant complains that the instructions assume that proof of constructive possession, without proof of actual knowledge of such possession, would warrant a conviction.

The instructions are not subject to the criticism urged. The court submitted to the jury the question as to appellant’s knowledge of the presence of the instruments on his place, from all of the facts and circumstances disclosed in the evidence bearing on the question. The exception urged is without merit.

IY. Complaint is made of Instruction No. 5, which is as follows:

“You are instructed that the statutes of Iowa provide that courts and jurors shall construe the law with reference to intoxicating liquors so as to prevent evasion; but this statute does not relieve the State from proving beyond a reasonable doubt every material allegation of the indictment, as by these instructions explained.”

This instruction is the law, as found in Code Section 2431, and has been expressly approved by us in State v. Snyder, 185 Iowa 728.

There was no error at this point.

Y. Appellant contends that the evidence does not sustain the verdict.

In view of a retrial of the case, we shall not" enter into a discussion of the evidence in the ease. It- presented a question for the consideration of the jury.

For the error pointed out, the cause must be reversed and remanded for new trial. It is so ordered. — Reversed and remanded.

Arthur, C. J., and Evans and Preston, JJ., concur.  