State v. Kendall

On the 4th day of January, 1924, an indictment was returned against the defendant, charging him with the crime of operating a motor vehicle while intoxicated. On this appeal, he assigns some forty-one errors. For convenience, we will condense as many of the errors as possible, relating to the same questions, affecting the testimony offered by various witnesses.

The first question discussed is a ruling made by the court excusing one of the jurors, under the testimony given by him on his voir dire examination. The question as to the qualification of the jurors is usually a question of the sound 1. JURY: discretion of the trial court. Unless abuse of competency: such discretion is clearly shown, reversal discretion cannot be had on this proposition. The record is of court. entirely barren of any such showing of abuse of discretion by the court, and therefore the appellant cannot complain. State v. Butler, 155 Iowa 204; State v. Smith,124 Iowa 334; State v. Teale, 154 Iowa 677; State v.Brown, 130 Iowa 57; State v. Crofford, 121 Iowa 395.

The weight of authority seems to be that it is not reversible error to exclude a juror for an insufficient cause if an impartial and unobjectionable jury is afterward obtained. Keady v. People, 32 Colo. 57 (74 P. 892); State v 2. JURY: Rodriguez, 23 N.M. 156 (167 P. 426); competency: Pittsburgh, C.C. St. L.R. Co. v. Montgomery, excusing 152 Ind. 1 (49 N.E. 582); State v. Kennedy, 133 for La. 945 (63 So. 476); Bluthenthal Bickart v. insuffi- May Advt. Co., 127 Md. 277 (96 A. 434). cient There is a material distinction between an error cause: in retaining a disqualified juror, and rejecting effect. one who is qualified; and the latter is not material if it did not prevent a trial by a fair and impartial jury. State v. Marshall, 8 Ala. 302. Under the juror's examination in this case, we hold that the court did not abuse its discretion in excusing the juror.

Complaint is made because objection was made to the attempt of counsel for defendant to state certain matters in his opening statement. Primarily, an opening statement to the jury by the attorney for either side should be devoted to 3. CRIMINAL statement of the facts, and conclusions to be LAW: trial: drawn from such facts, and not an attempt to run opening a school of instruction as to the law of the statement: case. The objection raised here, however, is not unsustained tenable, but arose under these conditions: objection. Counsel for defendant was making his opening statement to the jury, and was interrupted by the prosecuting attorney, with the remark: "I think that is scarcely a statement of fact; I think it is an argument."

The court: "It is getting pretty close to the line of argument. You may have an opportunity to argue the case at the close of the evidence." (The defendant excepts.)

This is the record before us. It is apparent therefrom that the objection, if it may be so considered, by the county attorney, was not sustained; but, if we consider the objection as sustained by the court, it is not prejudicial error. 16 Corpus Juris 891.

Numerous witnesses were asked whether the defendant was intoxicated, or in an intoxicated condition, or whether, in the opinion of the witness, the defendant was intoxicated. Defendant made timely objection to this line of testimony, 4. EVIDENCE: but was overruled; and he now assigns error opinion thereon. This question has been too long settled evidence: in this state to demand more than a citation of intoxica- authority. See State v. Huxford, 47 Iowa 16; tion. Ewing v. Hatcher, 175 Iowa 443, and cases therein cited.

Objection is also made to the range allowed on cross-examination of defendant's witnesses; but this is also a matter of discretion with the trial court. 5. WITNESSES: State v. Madden, 170 Iowa 230; State v. cross- McKinnon, 158 Iowa 619. It is also true that, examina- on redirect examination, questions are tion: permissible which explain the matters brought permissible out on cross-examination. State v. Rohn, 140 scope. Iowa 640. It is also urged that there was misconduct of the county attorney in his argument to the jury, in which the 6. CRIMINAL prosecuting attorney attempted to discuss the LAW: question of the penalty accompanying the crime trial: charged. Objection was made to this; and the improper court, in passing on the same, held that what argument was being said by the county attorney was proper by argument, and replied to what had already been defendant: said by defendant's counsel in his argument to reply by the jury. It thus appearing in the record that State. the argument advanced by the county attorney was responsive to the argument already made by the defendant's counsel, the defendant is not in a position to complain. As said by the court, the matters for argument on both sides were the facts involved in the case, and the jury was not interested in the penalty provided by the law. The defendant's attorney first infracted the rule, and he cannot now raise the question.

We have said that it is proper for the county attorney to answer the argument made by the defendant's counsel, and, although the question under discussion was an improper one, yet, under such circumstances, it is not ground for reversal. State v.Crayton, 138 Iowa 502; State v. Hart, 140 Iowa 456; State v.Wegener, 180 Iowa 102.

To the point that it is not proper for the defendant's counsel to tell the jury what the penalty on conviction will be, seeState v. Towne, 180 Iowa 339.

Defendant further complains that his theory of the case was not covered by the instructions of the court. The court, on its own motion, gave certain instructions herein, which fairly cover the case. If the defendant had wished his theory of 7. CRIMINAL the case instructed upon, he should have LAW: requested such instructions as would cover his instruc- theory. The court, having covered all the tions: elements of the case, did all it was required to waiver of do; and his failure to instruct on defendant's detailed theory, when not requested by defendant so to elaboration. do, is not reversible error. State v. Pelser,182 Iowa 1; State v. Brandenberger, 151 Iowa 197; State v.Jones, 145 Iowa 176.

Certain instructions were given by the court defining "intoxication," to which objection is made; but they fairly come 8. WORDS AND within the definition of "intoxication" as set PHRASES: out in Iowa cases, among others, State ex intoxica- rel. Cosson v. Baughn, 162 Iowa 308. tion.

Objection is also made to the testimony of the witness Pratt, in testifying that the automobile was traveling at approximately 25 miles an hour. Under the facts involved in the case, speed of the automobile is wholly immaterial, and had 9. MOTOR nothing whatever to do with the crime charged. VEHICLES: While the court should require a witness to be operation qualified, before permitting him to so testify, while in the instant case it was error without intoxicated: prejudice. evidence.

Numerous questions were asked of various witnesses relative to the appearance and conduct of the defendant at the time in question, and, over objection, they were 10. MOTOR permitted to answer. This ruling was not VEHICLES: erroneous. See Vannest v. Murphy, 135 Iowa operation 123. while intoxicated: Numerous other errors of minor importance are appearance assigned, but none of them seem to be of the and conduct character to demand further attention at our of accused. hands.

Motion was made to direct a verdict in behalf of the defendant; and a claim is here made that the same should have been sustained, and that the evidence is insufficient to sustain the verdict. Briefly stated, this case arose under 11. MOTOR the following circumstances: About or after VEHICLES: midnight on the night of November 19, 1923, operation defendant was driving south on Main Street in while the city of Council Bluffs, in a Ford intoxicated: automobile. His car collided with a street car evidence: approaching from the opposite direction. Several sufficiency. witnesses testify against the defendant, and several testify for him. Some of the witnesses on behalf of the State testify that the defendant was intoxicated at the time; others that he staggered when he attempted to walk, that he used abusive language toward the motorman and conductor, and that they smelled intoxicating liquor on his breath. The undisputed testimony shows that, after the collision, the defendant alighted from his car, and said, in addressing the motorman: "Didn't you see me coming? Why in hell didn't you turn out?" To say the least, this inquiry could not come from a mind that was properly functioning.

At most, there is a sharp dispute in the testimony as to whether or not the defendant was intoxicated. It was wholly a question for the jury, and the nisi prius court was right in submitting it to the jury.

The defendant further urges that it was reversible error for the trial court to sustain objections to the offer of the defendant to introduce testimony, before sentence was pronounced, in mitigation of the punishment in this case, 12. CRIMINAL and to refuse the defendant the right to present LAW: a plea for leniency. We know of no rule of law sentence: or reason why defendant should be permitted to evidence introduce testimony after conviction and before in re sentence, where the case has been tried in full, mitigation. and the court is familiar with all of the facts incident to the same.

The court, among other instructions, gave one as to the weight of the testimony of the defendant, which, in substance, tells the jury that he had a right to testify in his own behalf. Since he availed himself of that privilege, the jury 13. CRIMINAL should consider his testimony, in determining LAW: his guilt or innocence. They might consider it instruc- from a standpoint of an interested witness; and tions: in determining the weight and credit, they might credibility take into consideration his interest in the of accused result of the case; and they should give his as witness. testimony such weight and credit as they deem it fairly entitled to, when considered with all the other testimony offered and submitted on the trial, and with all the facts and circumstances disclosed by the evidence. A much stronger instruction against the defendant, along this line, was given in the case of State v. Walker, 133 Iowa 489, and we said of it that the instruction announced a rule which has heretofore received the sanction of this court, and was not erroneous (citing State v. Mecum, 95 Iowa 433; State v. Hunter,118 Iowa 686). A comparison of the instructions approved in those cases with the instruction given in the instant case shows very plainly that the instruction here given was not prejudicial to the rights of the defendant, and therefore there was no error in giving it.

Another complaint is made as to the sentence of the court in this case, on the ground that the same is excessive. This rather appeals to us as having some merit. It appears that this crime occurred about midnight. While, under the 14. MOTOR present state of our automobile traffic, there VEHICLES: is probably nothing more dangerous than an operation automobile in the hands of an intoxicated while driver, and the penalties attached for so doing intoxicated: should be of such character as to serve as a excessive deterrence and warning to others, at the same sentence. time we are disposed to feel that, in the present instance, this sentence is excessive. Section 5462 of the Code of 1897 provides that the court, upon examination of the record, shall render such judgment as the law demands, and it may affirm, reverse, or modify the judgment, or enter such judgment as the district court should have entered, or reduce the punishment. We feel called upon in this case to exercise this duty; and it is the order of this court that the punishment herein given be reduced from one year in the penitentiary to a fine of $1,000 and costs, and, on failure of the defendant to pay such fine, that he stand committed to the county jail of Pottawattamie County for the term of 300 days. Otherwise, the action of the district court is affirmed. — Modified andaffirmed.

FAVILLE, C.J., and EVANS and ARTHUR, JJ., concur.