State v. Dowling

Reversal is here demanded, first, because appellant's demurrer to the indictment was not sustained, and second, for error of the district court in permitting an amendment thereto.

On February 3, 1927, the following indictment was returned:

"The grand jury * * * accuses Loren Dowling of the crime of operating a motor vehicle while intoxicated, committed as follows: The said Loren Dowling, on or about the 3d day of January, in the year of our Lord, 1927, in the county and state aforesaid, did willfully, unlawfully, and feloniously operate and drive a certain motor vehicle while he, the said Loren Dowling, was in an intoxicated condition, contrary to and in violation of the law * * *."

Attack, as above indicated, was made thereagainst on the grounds, among others: First, that there are omitted allegations to the effect that said offense was committed upon the 1. INDICTMENT public highway; second, that Section 5027 of the AND Code of 1924 is void because it violates Section INFORMATION: 17 of Article I of the Constitution of Iowa, amendment: prohibiting unusual and excessive punishment; unnecessary and third, that the charge is too general. amendment: Thereafter, appellee asked leave to amend, which effect. was granted, and accordingly, there was added immediately after the word "drive," as contained in said accusation, this phrase: "Over and upon the streets of Webster City, Iowa." Directed thereat, defendant filed his motion to strike, on the ground that there was inserted thereby in said indictment substantive matter, rather than a correction of form. Upon the court's refusal to sustain defendant's position, he pleaded not guilty, went to trial, and was convicted by the jury. The errors will be considered in the order assigned.

I. Section 5027 of the Code of 1924 provides:

"Whoever while in an intoxicated condition operates a motor vehicle shall upon conviction be sentenced to the penitentiary for a period not exceeding one year, or be punished by a fine of not more than one thousand dollars or by both such fine and imprisonment."

Nowhere in said legislation is there any indication that the 2. MOTOR offense contains the prerequisite of commission VEHICLES: upon a public road or street, nor does the fact operation: that it is found in the chapter relating to operation motor vehicles and the "law of the road" signify while that, because of said title, construction intoxica- requires the implication that the definition is ted: not complete without including, by inference, indictment: such unexpressed condition. See State v. sufficiency. Pike, 312 Mo. 27 (278 S.W. 725).

Important is the fact that throughout the chapter the legislators have limited the scope of the act to the public thoroughfares, if they so intended, and when the thought was otherwise, the omission expresses it. Automobiles have been declared dangerous instrumentalities, and it can be readily understood why their operation by intoxicated persons would not be allowed anywhere, for the very good reason that the influence of liquor upon the human mind is such that the addict might not remain off the public way, but because of said very loss of self-control, wander or recklessly drive the machine in front of or over others legitimately using the "road," oftentimes causing injury, destruction, or death. Immateriality, therefore, prevented the "amendment" from resulting in harm to the appellant.

Code of 1927, Section 13744, was not in effect at the time in question, and the same section of the 1924 Code controls. In the former, correction "of form" only was permitted, while in the latter, supplying of substance also is allowed. Error without prejudice, however, is the only result, because the use of the objectionable correction amounted to surplusage, and therefore inessentiality.

II. Previous discussion renders unnecessary a long continued dissertation upon appellant's complaint that the court failed to strike said "amendment." Technically, it may have been subject to removal; but in view of the fact that there was contained therein no necessary allegation, damage did not arise therefrom.

III. Equally without merit is the assertion that the statement of the facts constituting the misdemeanor is too general. Accusation was framed under the expressions and phraseology of said Section 5027 of the 1924 Code, and compliance was made in all respects with Section 13743 thereof.

IV. Unconstitutionality of said act cannot be urged by appellant on the theory that the punishment is unusual and excessive. Judgment here was that commitment be 3. CONSTITU- in the county jail for 60 days, and a fine of TIONAL LAW: $100 be paid. There is nothing extraordinary or constitu- oppressive about that, under the circumstances. tionality: State v. Overbay, 201 Iowa 758; State v. Giles, who may 200 Iowa 1232; State v. Webb, 202 Iowa 633. A raise prerequisite to insist on the constitutional question. violation is the requirement that the statute assailed was prejudicial in its effect upon the challenger. Maximum punishment was not here imposed, but rather, a greatly reduced sentence.

No error appears in the record, and the judgment of the district court is affirmed. — Affirmed.

EVANS, C.J., and STEVENS, FAVILLE, and WAGNER, JJ., concur.