State v. Clark
| Decision Date | 11 December 1923 |
| Docket Number | 35724 |
| Citation | 196 N.W. 82,196 Iowa 1134 |
| Parties | STATE OF IOWA, Appellee, v. DENNIS A. CLARK, Appellant |
| Court | Iowa Supreme Court |
Appeal from Linn District Court.--JOHN T. MOFFIT, Judge.
DEFENDANT was indicted, tried, and convicted of the crime of manslaughter, for the alleged willful, unlawful, felonious and reckless operation of an automobile resulting in the death of Edna Morgan, in Linn County, Iowa, August 12, 1922. Judgment was entered committing the defendant to the reformatory of Iowa for an indeterminate sentence, not to exceed eight years. Defendant appeals.
Reversed.
Johnson Donnelly & Lynch and B. B. Hickenlooper, for appellant.
Ben J Gibson, Attorney-general, Herbert A. Huff, Assistant Attorney-general, and H. K. Lockwood, County Attorney, for appellee.
DE GRAFF, J.
On August 12, 1922, the defendant and three friends arranged for a picnic near Ellis Park, Cedar Rapids, Iowa. The preliminaries having been completed, they started for the picnic grounds in an automobile owned by Noble Spillman, who was one of the party. The front seat was occupied by Vina Marsh and the defendant, who was driving the car. The rear seat was occupied by Edna Morgan and Mr. Spillman. After leaving the city of Cedar Rapids, they proceeded through Ellis Park, and shortly thereafter, the car collided with some trees that stood within six inches of the traveled portion of the highway. The road at this point was narrow and rough. The car first collided with a tree near the edge of the road, and, after striking another tree 40 or 50 feet farther on, overturned. There is some testimony to show that the drag link, a part of the steering gear, was out of repair on the forenoon of the day of the accident, but of this fact there is no showing that the defendant had knowledge. The automobile was an old, second-hand car. The clutch was out of repair so that it caused the car to make considerable noise while in motion.
The indictment is predicated on the gross negligence of the defendant, and charges specific acts of negligence. The errors assigned on this appeal are legion, and, as appellant states, "like the seed of Abraham, are as numerous as the sands of the sea." None of the parties involved in the transaction distinctly remember any of the occurrences connected therewith. One of the party was killed, and the other three were seriously bruised and injured. This appeal primarily concerns itself with the admission of evidence and the giving of certain instructions by the court to the jury.
I. The State was permitted to show, over proper objection, that Ellis Park is a park frequented by a large number of people during the summer months, and that along this road, and not far from the road, picnic parties in large numbers congregate. The subject-matter of this inquiry was immaterial and irrelevant. There is no evidence that any picnickers were in Ellis Park or congregated in large numbers along the road in question at the time of the accident. It afforded a basis for argument on the part of the State as to the negligence of the defendant that could have but one tendency--to prejudice the minds of the jury.
II. The State was permitted to introduce, over objection, an ordinance of the city of Cedar Rapids. There is no showing that the city of Cedar Rapids had complied with the state law in establishing suburban and business districts in which the maximum speed of a vehicle should not exceed 20 miles per hour in a suburban district and 15 miles per hour in a business district. There is no showing that any signs had been posted, as required by law. Section 27, Chapter 275, Acts of the Thirty-eighth General Assembly. In a criminal case, the law does not presume that public officials have done their duty, as prescribed by statute, and the State has the burden to prove every material fact essential to a conviction. It was upon the State to prove that the city had complied with the requirements of law, in order to give the ordinance force and effect in a criminal prosecution. Remington v. Machamer, 192 Iowa 1098, 186 N.W. 32; Incorporated Town of Decatur v. Gould, 185 Iowa 203, 170 N.W. 449.
III. Complaint is made of certain language used by the prosecuting attorney in his argument to the jury, especially with reference to the power of the court to parole the defendant. Upon objection, the court admonished the jury to pay no attention to the remarks of counsel. Regardless of the admonition, the attorney for the State continued:
"There is nothing to prevent you from coming to me or going to the court, and saying, 'We had to find him guilty, because it was the truth; but for once we wish you would stay the execution of the sentence upon this man during his good behavior.'"
This language constituted a direct violation of the ruling and the admonition of the court, and the appellant may well complain of the liberty or license taken in this regard. We cannot approve of such practice....
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