State v. Carlson

• Decision Date: 14 December 1937
• Docket Number: 43857.
• Citation: 276 N.W. 770,224 Iowa 1262
• Parties: STATE v. CARLSON.
• Court: Iowa Supreme Court

276 N.W. 770

224 Iowa 1262

STATE v. CARLSON.

No. 43857.

Supreme Court of Iowa.

December 14, 1937

Appeal from District Court, Marshall County; B. O. Tankersley Judge.

Defendant was charged with the crime of operating a motor vehicle upon a public highway while intoxicated. Trial to a jury resulted in a verdict of guilty. Objections and exceptions to instructions, motion in arrest of judgment and for a new trial were overruled, and the court imposed a fine of $400 and costs. Defendant has appealed.

Affirmed.

In prosecution for operating motor vehicle upon public highway while intoxicated, where evidence as to intoxication of accused was in such conflict as to amount to question of credibility and weight of witnesses' testimony, the matter was one peculiarly for jury.

E. N Farber and F. E. Northup, both of Marshalltown, for appellant.

John H Mitchell, Atty. Gen., Henry J. Roelofs, Sp. Asst. Atty. Gen., and J. W. Pattie, Co. Atty., of Marshalltown, for the State.

HAMILTON, Chief Justice.

The facts and circumstances immediately preceding and leading up to the arrest of the defendant are as follows:

Linn street runs east and west, and Sixth street runs north and south in the city of Marshalltown, Iowa. Both streets are paved. The paving is quite narrow, 24 feet between the curbs on Linn street as it proceeds east of Sixth street. The pavement on Sixth street is 22 feet and one inch between curbs as it proceeds south of Linn street.

On June 14, 1935, about 6 o'clock p. m., defendant while driving west on Linn street approached the intersection of these two streets, intending to make a left turn from Linn street south into Sixth street. There were two cars parked on the west side of Sixth street just south of the intersection, and as defendant drove into the intersection he saw a car approaching him from the south. He stated that he was afraid there wasn't room for him to pass between the parked cars and the approaching car, and to avoid the collision with the approaching car, instead of turning left, he drove behind the parked cars over the curb line onto the parking and into the front yard of what is known in the record as the " Robbins residence," situated on the southwest corner of this intersection, across the walk leading from this house to the curb line, turning back to his left onto the pavement in front of these two parked cars where he stopped. At this particular time there was a small child sitting on top of a toy automobile which was on this walk leading from the Robbins residence to the street, and apparently some part of the defendant's car came in contact with this toy automobile and the child was thrown into the air onto the ground. Some of the spectators, seeing the car off the highway and in close proximity to this child and seeing the child in the air, assumed that the child had been struck or run over and injured.

There was considerable commotion and excitement. The child was picked up and rushed to a neighbor's house across the street. A doctor was called; police were notified of the accident. Shortly thereafter three policemen arrived on the scene and the defendant was taken to the police station. Before the police arrived the defendant got out of his car; had some controversy with one of the ladies present as to his condition about whether he was intoxicated or not. The key was taken from his car so he couldn't drive it any farther. After a little while he walked into the home where the child was being cared for and where the doctor was making an examination of the child to inquire about the child's condition, and while in there the doctor said to him in substance: " Adolph, you are a friend of mine, but you have been drinking too much to be driving a car." The defendant protested that he was not intoxicated and that he would get his own doctors to examine him. There was evidence from some of the spectators that he was unsteady on his feet, that his eyes were glassy and his face flushed, and that he was perspiring freely. One witness testified that she said to him while he was still seated in his car, " Man, you're drunk," and that he replied, " Yes, lady." He, of course, denies this. All three of the policemen testified that he was to some extent intoxicated when they saw him immediately after the accident, and the doctor who was there immediately after the accident and examined the child and talked with the defendant also testified that he was intoxicated. After he was taken to the police station defendant called three physicians. This was about 45 minutes after the accident. They all examined him and applied various scientific tests for the purpose of ascertaining whether or not he was intoxicated, and his reactions were all negative, and these three doctors all testified emphatically that at that time the defendant was not intoxicated, and that in their opinion he could not have been intoxicated at the time of the accident. One of the doctors did modify his opinion by saying: " It is true that if one is mildly intoxicated, shock and accusation of an offense and being placed in the custody of an officer would have the effect of sobering."

Counsel for defendant, in a very forceful and rhetorical argument, ask the court to make use of its power to right what they insist is a manifest miscarriage of justice on the part of the jury. It is contended that the evidence not only wholly fails to show that the defendant was intoxicated, but on the contrary shows positively that he was sober, and that since the verdict is against the clear weight of the evidence this court should interfere and grant a new trial. Because of the earnestness with which the matter has been presented to us, we have scrutinized this record very carefully and reach the conclusion that the evidence is in such sharp conflict on this question of intoxication that it was largely a question of the credibility of the witnesses and the weight to be given to their testimony and this is a matter peculiarly for the jury. It may be in this instance the jury has made a wrong decision. If so, the responsibility is theirs. It does not rest upon the court. It would serve no purpose to set out the evidence, and we refrain from doing so.

It is true that this court, in State v. Wise, 83 Iowa 596 597, 50 N.W. 59, 60, made the following pronouncement: " This court, though proceeding carefully and cautiously, will interfere in criminal cases more readily than in civil. We will not, in a criminal case, support a verdict if it be against the clear weight of the evidence." But this case does not fall within this rule. We think the facts in the instant case bring it within the rule announced in State v. McKenzie, 204 Iowa 833, 216 N.W. 29, 30, wherein we said: " Section 13944, Code 1924, provides grounds for a new trial, among which are: ‘ (6) When the verdict is contrary to law or evidence.’ Under this section we have announced the following rule: Where the verdict is clearly against the weight of...