City of Des Moines v. Davis

• Citation: 214 N.W.2d 199
• Decision Date: 16 January 1974
• Docket Number: No. 1--56069,1--56069
• Parties: CITY OF DES MOINES, Appellee, v. Harrison S. DAVIS, Appellant.
• Court: Iowa Supreme Court

Page 199

214 N.W.2d 199

CITY OF DES MOINES, Appellee, v. Harrison S. DAVIS, Appellant.

No. 1--56069.

Supreme Court of Iowa.

Jan. 16, 1974.

Marlyn S. Jensen, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Philip T. Riley, Corp. Coun., and David Welu, Asst. City Atty., Des Moines, for appellee.

Heard by MOORE, C.J., and MASON, REES, UHLENHOPP and HARRIS, JJ.

REES, Justice.

Defendant was charged with driving 41 miles per hour in a 30-mile per hour zone in violation of section 30--172 of the Municipal Code of the City of Des Moines. The offense is alleged to have occurred on October 16, 1972, and on November 7, 1972 defendant appeared in the Municipal Court of the City of Des Moines and entered a plea of not guilty in open court, was found guilty and appealed to the District Court.

Trial on appeal was had on January 10, 1973 to a six-member jury, which returned a verdict of guilty. Defendant bases his appeal on the court's refusal of his request to instruct the jury as to legal justification or excuse. We affirm trial court.

Defendant, at the time of his arrest, was traveling northeast on Interstate 235 in the city of Des Moines and exited on the Easton Boulevard interchange, and was preceded by a car with an Arkansas license plate and followed by a third car. The proceedings were not reported, but the record before us indicates defendant testified that the driver of the Arkansas car which preceded him slowed as if to make a turn and then proceeded forward, and that defendant then decided to pass the Arkansas car, although he testified he could have avoided the situation by slowing his vehicle. He testified he was under the impression the Arkansas vehicle might turn into his lane of traffic so he accelerated additionally to avoid a collision. He further testified the car following him was beginning to pass. The driver of the car following defendant testified he recalled the Arkansas car had turned left onto Searle Street after both he and the defendant had passed it. The police officer operating the rader equipment which reflected the fact the appellant's speed was 41 miles per hour in a posted 30-mile per hour zone, testified defendant's car maintained a speed of 41 miles per hour for a distance of three-quarters of a block past Searle Street until passing the officer's radar equipment, and that defendant gave no indication that he was slowing the progress of his vehicle.

Defendant contends the above recited facts generated a question as to whether his actions were justified and legally excusable, and that since the court refused to instruct the jury as to legal excuse the court committed error.

Trial court submitted draft copy of his instructions to counsel for defendant and counsel for the City, and defendant's counsel then requested the court to submit the following instruction:

'In the event you find that the defendant was exceeding the speed limit on Easton Boulevard in the 2200 block in the City of Des Moines, you must then decide whether or not the defendant had reasonable apprehension which would justify or excuse his accelerating his automobile under the circumstances. If you find that the defendant did have reasonable apprehension and had legal excuses or justification for accelerating to avoid what he felt was a possible accident, you are obligated to return a verdict of acquittal.'

The request for the submission of such instruction was resisted by counsel for the City.

Defendant contends the trial court's error in refusing to instruct the jury as to legal justification or excuse deprived defendant of a fair and impartial trial. He asserts justification and legal excuse arise from necessity and are a complete defense to an alleged offense not being confined to intent only.

I. We have found no Iowa case on the use of the doctrine of sudden emergency as a common-law criminal defense.

Legal excuse has been defined by this court as:

(1) Anything that would make it impossible to comply with the statute or ordinance.

(2) Anything over which the driver had no control which places his car in a position contrary to the provisions of the statute or ordinance.

(3) Where the driver of the car is confronted by an emergency not of his own making and by reason thereof he fails to obey the statute; and

(4) Where a statute specifically provides an excuse or exception.

Young v. Hendricks, 226 Iowa 211, 213, 283 N.W. 895, 896--897. See also Kisling v. Thierman, 214 Iowa 911, 243 N.W. 552.

Defendant based his request for instruction on his...