State v. Barlow

• Decision Date: 06 March 1951
• Docket Number: No. 47657,47657
• Citation: 242 Iowa 714,46 N.W.2d 725
• Parties: STATE v. BARLOW.
• Court: Iowa Supreme Court

Page 725

46 N.W.2d 725

242 Iowa 714

STATE v. BARLOW.

No. 47657.

Supreme Court of Iowa.

March 6, 1951.

Rehearing Denied May 11, 1951.

Batschelet & Thompson, Guthrie Center, Welch & Welch, Logan, for appellant.

Robert L. Larson, Atty. Gen., of Iowa, Don Hise, First Asst. Atty. Gen., Walter A. Delahoyde, Guthrie County Atty., Guthrie Center, for appellee.

MULRONEY, Justice.

The information in this case accused the defendant 'of the crime of third offense of operating a motor vehicle while intoxicated' and charged that: 'the said William Edward Barlow, on or about the 5th day of August, A.D., 1949, in the County of Guthrie and State of Iowa, did operate a motor vehicle while in an intoxicated condition upon the public highway of Guthrie County, Iowa, contrary to Section 321.281 of the 1946 Code of Iowa, I.C.A., defendant having twice previously been convicted of violating Section 321.281 of the 1946 Code of Iowa, I.C.A., for that on or about September 18, 1946 said defendant was first convicted of operating a motor vehicle while intoxicated upon the public highways of Polk County, Iowa, said conviction recorded in Book 90, Page 296 in the municipal Court records in and for the City of Des Moines, Polk County, Iowa. And that on or about the 4th day of September, 1947 said defendant, William Edward Barlow, was convicted on a charge of operating a motor vehicle upon a public highway while in an intoxicated condition, second offense in the District Court of Dallas County, Iowa, said conviction being recorded in Book 54, Page 65, of the District Court Records of Dallas County, Iowa.'

The jury found defendant guilty of the main charge and that he 'has been twice heretofore convicted of the same offense.' The trial court sentenced defendant to three years in the penitentiary and he appeals, asserting (1) insufficiency of the evidence to support the verdict, (2) error in overruling a motion for continuance, (3) errors with respect to the admission of evidence and instructions to the jury concerning prior convictions, and (4) error in the giving of an instruction to the jury after they had failed to agree after about 22 hours deliberation.

I. The evidence supports the verdict finding defendant guilty of driving while intoxicated in Guthrie County on August 5, 1949. We need not review all of the evidence. It is admitted defendant was driving a car on a street in Menlo, Guthrie County, Iowa when he was stopped and arrested by a highway patrolman. The only dispute is as to whether the defendant was intoxicated at the time. The highway patrolman took him to the Mayor's office in Stuart where the preliminary information was signed by the patrolman. The patrolman and sheriff and some other officers who saw him that evening said that in their opinion he was intoxicated. Other town officers of Stuart and Menlo who saw him that evening said he was not intoxicated. Of the other citizens of Stuart and Menlo who saw him on that late afternoon and evening some said he was intoxicated and others said he was not. The issue was for the jury.

II. The record indicates this was a second trial; that the first had resulted in a jury disagreement. The defendant placed a subpoena for Mrs. Graf, the Mayor of Stuart, in the sheriff's hands a few days before the trial but the sheriff was unable to serve it as the mayor was in New Orleans on vacation. The defendant's counsel thereupon made a motion for continuance supported by his affidavit that if called as a witness the mayor would testify she saw the defendant at about 7 o'clock on August 5, 1949 and that in her opinion he was not intoxicated and that she saw him again about 9 or 10 o'clock that evening and that he was not intoxicated at any time on the evening of August 5, 1949; that she heard some one ask him to take a blood test and she said: 'Why don't you have one Eddy?' and he replied to the effect that there was no use taking a blood test because he had been drinking and his system was saturated with it, but he hadn't been drinking that day; that in her opinion the defendant had a hangover.

Mrs. Graf was a witness for the state in the former trial. The state consented that all of her testimony given in the former trial could be introduced in the second trial and thereupon the motion for continuance was overruled. Mrs. Graf's testimony in the former trial was introduced by defendant. The provision of the rules of civil procedure relative to continuances of civil causes are applicable to the continuance of criminal actions. Section 780.2, Code 1950, I.C.A. It is enough to say we subscribe to the general rule of all the cases as stated in 17 C.J.S., Continuances, § 54: 'It is not error to deny a continuance on the ground of the absence of a witness whose testimony is in the record of the trial of a companion case, or in a former trial of the case and available to the parties pursuant to a stipulation signed by them.'

Here the record shows no stipulation but the county attorney agreed that the mayor's former testimony could be used and in any event the transcript of her testimony in the former trial would be available to either party on the retrial. Section 622.97, Code 1950, I.C.A.

III. We can dispose of the last error asserted quickly. After the jury had been out twenty-two hours the trial court on his own motion called the jury into the court room and gave the jury the identical instruction which was given in State v. Bogardus, 188 Iowa 1293, 176 N.W. 327, after the jury in that case had deliberated thirty hours. As said in State v. Bogardus, such an instruction is not always appropriate and whether it should be given or not rests largely within the sound discretion of the trial court and the circumstances of each case. The first trial of this case had ended in disagreement. Before the court gave the instruction he asked the forewoman if she thought there was any possibility of agreement and she replied: 'We haven't given up yet.' There was no reversible error in the giving of this instruction.

IV. The information charges two prior convictions of driving while intoxicated--one in Polk County and one in Dallas County. There was sufficient and proper proof to support the finding as to the Dallas County conviction. A copy of page 69 of record book No. 54, certified by the Clerk of Dallas County to be correct, containing the complete judgment entry showing the conviction on September 4, 1947 of William Edward Barlow of the crime of driving a motor vehicle while intoxicated, was introduced by the state. This is exactly as pleaded (except the information alleges the record is on page 65) and in conformity with the statute, section 622.52, Code 1950, I.C.A. The sheriff of Dallas County, who arrested the defendant on the Dallas County charge, testified that he knew of his own personal knowledge that the defendant here was the same defendant who 'was convicted of O.M.V.I. in Dallas County on September 4, 1947.'

V. The evidence to support the finding as to the Polk County conviction is, we feel, insufficient. As will be noted the information alleged that this conviction was 'recorded in Book 90, page 296 in the municipal Court records in and for the city of Des Moines, Polk County, Iowa.' The clerk of the municipal court of Des Moines identified Exhibit 1 as being 'an order of Ralph D. Moore, Judge of the Municipal Court of the city of Des Moines in the case of State of Iowa v. William E. Barlow on the charge of operating a motor vehicle while intoxicated.' He then said: 'I received this order from Judge Moore and upon receiving it, it is then journalized and carried as a record and entered on the indictment combination docket. I have that docket with me, it is on page 190.' He then went on to read from Exhibit 2 which was page 190 of Indictment Combination Docket No. 2 containing all of the clerk's entries showing the title of the case, the attorneys, process issued, bond filed, etc. Under the heading 'Proceedings' appear the notations 'plea of guilty. Fine $300.00 or 90 days in jail' and then: 'Journal 90 page 296.' The clerk then testified that this journal No. 90 was the record book where the copy of the original order was spread but that he did not have that book with him and it was never introduced in evidence. The defendant objected to the exhibits and the clerk's testimony as in competent, irrelevant, immaterial, and not the best evidence. The court overruled the objections.

The objections should have been sustained. As pointed out in State v. Koenig, 240 Iowa 592, 36 N.W.2d 765, the statutes provide the municipal court clerk shall keep a 'record book' in substantially the same form as the clerk of a district court. Here it is apparent the clerk kept such a book where the judgment was spread upon a page of that book. The prior offenses which section 321.281, Code 1950, I.C.A., provides shall increase the penalty mean offenses that have been legally ascertained and determined--synonymous with convictions or judgments obtained in prior actions against the defendant for violation of the said statute. Words & Phrases, Perm.Ed., Vol. 29, page 216; Vol. 9 page 609; State v. Smith, 129 Iowa 709, 106 N.W. 187, 4 L.R.A., N.S., 539. It was the state's burden to prove the prior convictions beyond a reasonable doubt. State v. Lowe, 235 Iowa 274, 16 N.W.2d 226.

A review of the opinions of this court leaves no doubt at all that if the state seeks to prove a former conviction by the court record then the proper proof and the best evidence is the original court record of the judgment or a copy thereof certified to by the clerk. State v. De Bont, 223 Iowa 721, 273 N.W. 873; State v. Higgins, Iowa, 39 N.W.2d 599; Sec. 622.52, Code 1950, I.C.A.

A great many of our earlier decisions are reviewed in State v. Wieland, 217 Iowa 887, 251 N.W. 757, 761 and the conclusion there reached is: 'In view of our former rulings, we are constrained to hold that, under the statutes and the decisions...