State v. Bethards
| Decision Date | 15 June 1948 |
| Docket Number | 47163. |
| Citation | 32 N.W.2d 769,239 Iowa 899 |
| Parties | STATE v. BETHARDS. |
| Court | Iowa Supreme Court |
Theodore F. Mantz, of Des Moines, for appellant.
Robert L. Larson, Atty. Gen., Don Hise, 1st Asst. Atty. Gen., Earl R. Shostrom, Sp. Asst. Atty. Gen., and Carroll O. Switzer Co. Atty., of Des Moines, for appellee.
Defendant was charged with, tried for, and convicted of a minor traffic violation, but under the statutes he is compelled to come to this court for a review.
The facts as they appear from the municipal court records, which have been certified to us, and from the abstract, are in substance as follows: Defendant, who lives at 1920 East 27th Street in Des Moines, on the morning of August 26, 1947, drove his car south on East 30th Street. His wife was with him. As he approached Grand Avenue, something went wrong with the car and he drove over against the west curbing and the car stopped just north of Grand Avenue, headed south, at the northwest corner of the 30th street and Grand Avenue intersection. His wife left the car to go to the State Fair Grounds. Apparently the Fair was being held. R. W. Grubb, a police officer of Des Moines, was standing in the middle of the intersection directing traffic. He had stopped the traffic going east and was directing the north-south traffic to proceed. He motioned the defendant to come on. Defendant testified that he told Grubb he was out of gas, that 'it has something in the line, it will run a while and stop and after you sit a few minutes it will run again, so she (Mrs Bethards) said to him she said we are not out of gas, and he was going to help push it and I drove on.' The car was there about two minutes. Defendant testified that there was but little traffic at the time.
Policeman Grubb's version of the transaction varies little from that of defendant. He left his place in the intersection and came over to push the car, as it was obstructing traffic for 'at least 100 yards.' Just how the car, parked as it was, could do this is not clear. He asked defendant to get out and help push, and defendant told him that he was not out of gas, and upon trying the ignition again the car started. Grubb testified: We complete the testimony by noting that the defendant indecorously designated the place of osculation.
Apparently considering the defendant's offense was obstructing traffic with aggravation, Officer Grubb, left his traffic directing job and pursued the defendant to his home and gave him a 'ticket'. Just what was on it does not appear.
Sometime in the early forenoon of August 30, 1947, Grubb obtained an information blank--a card about the size of a postal card. It has printed designations thereon followed by blank lines to be filled according to the facts of the particular case. At the top of the card is the heading substantially in this form:
The defendant's name was written on the above line. Below in writing and print the information stated that defendant 'at E. 30th--Grand on 8/26/47, 9.15 a. m. in the City of Des Moines, in the County of Polk, State of Iowa, unlawfully and willfully Obstructed Traffic and contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Iowa, and contrary to an ordinance of the City of Des Moines in such cases made and provided.'
The information was subscribed and sworn to by Grubb before Judge Grund on August 30, 1947.
As shown by the Municipal Court Docket in the case, a warrant was issued that morning and an officer arrested defendant and brought him into court. Defendant pleaded not guilty and trial was set and had in the forenoon of August 30, 1947, before the court.
Officer Grubb testified in substance as we have noted. The abstract then shows:
'The Court (addressing defendant): You come over here and take the stand and tell me your side of the story.' Under examination by the court defendant told his version of the matter as we have stated herein. The court asked him about two other traffic violations. Following this testimony the abstract then shows:
The Municipal Court Docket shows:
'8/30/47 Def't. found guilty. Sentenced to 10 days in Jail. Bond on appeal $300.00. H. B. Grund.
'8/30/47 Def't. Committed.
On the Docket the words 'City of Des Moines' are stricken from the title of the case, and it appears as 'State of Iowa v. Roy D. Bethards,' and the crime charged is stated to be 'Obstructing Traffic.' Defendant was in jail twenty-four hours or more before he was released.
I. Defendant assigns two errors. The first is that 'the information filed in this cause has no validity.'
The requirements of an information in a nonindictable offense are stated in section 762.3, Code 1946, as follows:
'Contents of information. Such information must contain:
The crime of which the defendant is accused should be stated in the information. Sect. 762.4. In the information defendant is accused of 'Obstructing Traffic'.
Paragraph 1 of section 762.3 was complied with. Paragraph 2 was complied with in part. It correctly named the defendant. But for the plaintiff it named two, 'The State of Iowa' and 'City of Des Moines.' Defendant was charged with a single so-called offense. Under the record, it could not have been against both the State and the City. If the obstruction of traffic violated an ordinance it was a Class 'D' action under section 602.25 of the Code, and the defendant would be summarily tried by the court, and his appeal would be to the district court. If the offense was against the State, the action was a Class 'C' one under section 602.25, triable to a jury, and any appeal would be to the Supreme Court. There was no compliance with paragraph 2 of section 762.3. An information so entitled would tend not only to misinform a defendant, but to mislead him. Defendant was tried by the court. He may have waived a jury trial. The record is silent on the matter. If he did not ask for a jury it may have been that he was misled. The provisions of said section 762.3 are mandatory. Defendant has not specifically argued the point mentioned in this division.
II. Was paragraph 3 of that section complied with? No statute was designated as having been violated by the obstruction of traffic in the information, or on the docket, or in the trial. The State in argument seems undecided in the matter. Section 321.294, Code of 1946 has to do with the circumstance of a motorist driving so slowly as to impede or block the normal and reasonable movement of traffic. The State does not rely on that statute, and the facts shown do not establish a violation of it.
The State in argument urges that defendant violated section 321.229 of the Code, which provides that no one shall willfully refuse to comply with the orders of a traffic officer. It urges also that defendant obstructed traffic in violation of Code section 321.358(13) by stopping or parking where an official sign prohibits stopping or parking. There was no charge against defendant for violating either statute, and the evidence does not support such charges. Grubb did not testify that there was any no-parking sign where defendant stopped. On the back of the information, someone apparently Grubb, at some time not designated, made some unsworn comments about what took place at East 30th and Grand Avenue when the alleged offense was...
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