State v. Benson

• Decision Date: 21 October 1941
• Docket Number: 45559.
• Citation: 300 N.W. 275,230 Iowa 1168
• Parties: STATE v. BENSON.
• Court: Iowa Supreme Court

300 N.W. 275

230 Iowa 1168

STATE v. BENSON.

No. 45559.

Supreme Court of Iowa.

October 21, 1941

Appeal from District Court, Dallas County; Norman R. Hays, Judge.

Defendant was convicted of the crime of driving a motor vehicle while intoxicated and appeals.

Affirmed.

MITCHELL and SAGER, JJ., dissenting.

Blake Willis, of Perry, and C. A. Smedal, of Ames, for appellant.

John M Rankin, Atty. Gen., Robert E. Frush, Co. Atty., of Adel, and Jens Grothe, Asst. Atty. Gen., for appellee.

MILLER Chief Justice.

Defendant was indicted for operating a motor vehicle upon the highway while in an intoxicated condition. The verdict of the jury was guilty. Sentence was for four months in jail and a fine of $600. Defendant appeals. While several assignments of error are asserted, they involve but two propositions: First was there sufficient evidence to sustain the verdict? Second did the court err in permitting a deputy sheriff to testify that defendant declined to submit to a blood test?

I.

We find no merit in the contention that the evidence was insufficient to sustain the verdict. The state introduced some eight witnesses who testified to the intoxication of the defendant. Most of the witnesses so testified without objection on the part of the defendant. Such objections as were made to the testimony are not raised as grounds for reversal. Instead, defendant urges only the rulings upon a motion for directed verdict and the motion for new trial, contending that the evidence fails to establish guilt beyond a reasonable doubt and that we should reverse to prevent a miscarriage of justice. A similar argument was urged upon us in the case of State v. Carlson, 224 Iowa 1262, 1264, 276 N.W. 770. The evidence of guilt seems to be more substantial in this case than in that one. We refused to reverse there. Our decision is the same here.

II.

The second proposition is not so easily disposed of. It presents a question which has not been directly decided by this court. Defendant relies upon State v. Height, 117 Iowa 650, 91 N.W. 935, 59 L.R.A. 437, 94 Am.St.Rep. 323; Wragg v. Griffin, 185 Iowa 243, 170 N.W. 400, 2 A.L.R. 1327; State v. Weltha, 228 Iowa 519, 292 N.W. 148; and other cases. He contends that the ruling of the court on the admissibility of the testimony of the deputy sheriff violated the constitutional provision against self-incrimination. The decisions relied upon do not require a reversal.

Defendant was not compelled to give evidence of his guilt. All that occurred was that a witness testified, over objection, that defendant declined to submit to a blood test. The court instructed the jury as follows:

" Certain testimony has been received to the effect that during a conversation between the defendant and the witness, John McCarthy, it was suggested to the defendant that he go to the hospital and take physical treatment and a blood test, and that the same was declined by the defendant.

You are instructed that there is no law requiring any person, and in this case the defendant, to submit to any blood test; and the fact, if it be a fact, that he declined to so submit himself to such a test, is submitted and should be considered by you only as the same may be a circumstance to be considered by you together with all of the other facts and circumstances developed upon the trial hereof in determining the question as to whether the defendant was or was not intoxicated, at the time in question."

The foregoing instruction was excepted to and the ruling is assigned as error here. The proposition is raised in other ways, but counsel concede that the decisive question is whether the admission of the evidence constitutes a denial of a constitutional protection against self-incrimination. We are of the opinion that the evidence was admissible.

In the early case of State v. Pratt, 20 Iowa 267, 269, judge Wright, speaking for this court, states: " It seems that there was testimony tending to show that the prisoner, when arrested, was charged with the theft and made no reply. To this proof there was no objection at the time; but an instruction was asked to the effect that such testimony ‘ could not be used against him.’ This was refused, and very properly. The objection could not regularly nor properly be raised in this manner nor at this stage of the proceedings. Then, again, while this character of proof is often entitled to but little weight, there is no rule justifying its entire exclusion. Its value is to be determined by all the circumstances, of which the jury are the peculiar judges. One person may be so confused or embarrassed, so completely taken by surprise by the unexpected and sudden arrest and charge, as, though ever so innocent, to act in a manner strongly indicative of guilt. And yet, another man, cool and self-possessed, may be able at once to command the entire situation, and though the most hardened villain, disarm suspicion and impress those around with his innocence. All these and other circumstances are to be considered. But the fact that he was charged and made no reply or denial, may properly be shown, the effect thereof being left to the jury. Wharton, 345, note 6; 1 Greenl.Ev., § 215; State v. Perkins , 3 Hawks 377; [ Berry v. State], 10 Ga. 511."

The foregoing pronouncement is in accord with later statements of this court. In State v. Beckner, 197 Iowa 1252, 1258, 198 N.W. 643, 645, we state: " There can be no question but that evidence in regard to the conduct of appellant when he was accused of the crime is admissible, and is proper to be considered by the jury in passing upon the question of his guilt or innocence, and it is frequently a strong circumstance in a case."

In the recent case of State v. Johnson, 221 Iowa 8, 19, 264 N.W. 596, 601, 267 N.W. 91, we state:

" The admission of testimony of the conduct of the defendant at the time he was first accused of the crime was not objectionable. In fact, the rule is, the conduct of the defendant when he is accused of the crime is admissible. 16 C.J. 549, § 1057, says:

‘ At least in so far as they tend to connect him with the crime and are not merely self-serving, the conduct and general demeanor of the accused after the crime, his language, oral and written, his attitude and relations toward the crime, and his actions in the presence of those engaged in endeavoring to detect the criminal are always relevant, whether part of the res gestae or not.’ This text finds support in State v. Beckner, 197 Iowa 1252, 198 N.W. 643; State v. Pratt, 20 Iowa 267." '

Of course, when one is accused of a crime, he does not have to reply to the accusation. But if he declines to...