State v. Eichler

• Decision Date: 04 June 1957
• Docket Number: No. 49204,49204
• Citation: 248 Iowa 1267,83 N.W.2d 576
• Parties: STATE of Iowa, Appellant, v. Joseph R. EICHLER, Appellee.
• Court: Iowa Supreme Court

Page 576

83 N.W.2d 576

248 Iowa 1267

STATE of Iowa, Appellant, v. Joseph R. EICHLER, Appellee.

No. 49204.

Supreme Court of Iowa.

June 4, 1957.

Norman A. Erbe, Atty. Gen., Freeman H. Forrest, Asst. Atty. Gen., and William M. Tucker, County Atty., Iowa City, for appellant.

Edward L. O'Connor, Iowa City, for appellee.

THOMPSON, Justice.

A story widely told maong lawyers concerns the trial judge who, being advised that his proposed ruling upon a matter then before him was directly contrary to holdings of the court of last resort of his state, said: 'Did they say that? Well, they are going to have to say it again.' It appears that this is not merely an old lawyers' tale. Such things do happen. The learned trial court, in the matter now before us, criticized our previous decisions upon a crucial point there involved, announced its entire disagreement, and in effect overruled them. We have read with care the court's opinion and reasoning as set out in the record before us; but we are not convinced. We have arrived at the point of saying it again.

On September 15, 1956, the county attorney of Johnson County filed a true information accusing the defendant of the crime of operating a motor vehicle while intoxicated (second offense) and charging that the said defendant had operated a motor vehicle at a certain specified time and place while he was intoxicated, in violation of section 321.281 of the 1954 Code of Iowa, I.C.A.

A second paragraph of the information charged the defendant was guilty of operating a motor vehicle while intoxicated as a second offender because he had been convicted of operating a motor vehicle while intoxicated as a first offender in the District Court of Johnson County, Iowa, on May 22, 1954, and setting out the volume and page of the record of this offense in the district court.

To this information the defendant filed his demurrer, in nine separate paragraphs, which however, as argued here, raises only two points: 1, that the information charges two distinct crimes, and 2, that the allegation of the conviction of the prior offense fails to charge that it was in violation of any section of the criminal code. The trial court sustained the demurrer upon the first point and denied it as to the second.

I. It is evident that the trial court in sustaining the first ground of the demurrer was in direct opposition to longestablished precedent and practice in Iowa. Repeated decisions of this court have said that if the state is to rely upon previous convictions to increase the penalty such convictions must be pleaded in the indictment or information and proven beyond a reasonable doubt upon the trial. The trial court recognized this situation, saying:

'The Supreme Court of this state by its decisions or rule of court, and not by any statutory authority, has adopted and promulgated an unreasonable rule requiring a jury in drunken driving cases, where a prior conviction has been set forth, to convict on the prior conviction beyond a reasonable doubt.'

Again, the court said: 'This analysis of the question involved is to this Court an illegal and illogical conclusion.'

Finally, the court further said:

'* * * with sincere respect for the Supreme Court of this state, I am satisfied that the present procedural rules adopted are contrary to reason; violative of Sections 773.1 and 773.35 of the Code of Iowa 1954 [I.C.A.], and Section 10, Article I, of the Constitution [I.C.A.], of the State of Iowa, and should be changed.'

The court accordingly proceeded to make the change by sustaining the demurrer, dismissing the case and discharging the defendant's bond.

It has been said, by the late Mr. Justice Jackson of the United State Supreme Court, that courts of last resort are not final because they are infallible, but rather are infallible because they are final. Criticism of the courts is not new in a profession in which every case represents a difference of opinion among men, the entity which must resolve these differences is certain to displease someone and it is natural for such displeasure to find expression. Yet it is the prerogative of this court to determine the law, and we think that generally the trial courts are under a duty to follow it as expressed by the courts of last resort, as they understand it, even though they may disagree. If our previous holdings are to be overruled, we should ordinarily prefer to do it ourselves.

This is particularly true when, as here, it appears that the trial court has acted upon a clearly erroneous assumption. No one will deny that an information charging two separate offenses in one count is bad for duplicity. Section 773.35, Code of 1954, I.C.A.; State v. Leasman, 208 Iowa 851, 226 N.W. 61; 27 Am.Jur., Indictments and Informations, section 124. But the information before the court does not charge two separate offenses. It charges an offense of driving while intoxicated, which must be proven; and that there has been a previous conviction of the same offense, so that the defendant is guilty as a second offender. The elements making up the previous offense need not be proven. All that is required at this point is that it must be shown beyond a reasonable doubt that there was a previous conviction and that the present defendant is the identical person who was so convicted.

The Supreme Court of the United States has dealt with the contention made here by the appellee and adopted by the trial court, in these words: 'The allegation of previous convictions is not a distinct charge of crimes, but is necessary to bring the case within the statute, and goes to the punishment only.' McDonald v. Commonwealth of Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 390, 45 L.Ed. 542. (Italics supplied.) The same court has also quoted with approval this statement from State v. Graham, 68 W.Va. 248, 251, 69 S.E. 1010, 1011, 40 L.R.A.,N.S., 924; 'The proceedings under the statute are for identification only. They are clearly not for the establishment of guilt.' Graham v. State of West Virginia, 224 U.S. 616, 32 S.Ct. 583, 586, 56 L.Ed. 917. (Italics supplied.)

The purpose of alleging prior convictions in an indictment for a present offense is made clear in many of our own decisions. Section 747.4, Code of 1954, I.C.A., says:

'Upon any trial when the indictment refers to former convictions of the defendant, the jury, if it finds the defendant guilty, and the court, if the defendant is convicted on a plea of guilty, must also find and determine specially whether the defendant had previously been convicted of either of the crimes referred to in the indictment, and the number of times so convicted.'

The appellee seems to think this has no application to additional offenses under section 321.281, the driving while intoxicated statute, since section 747.4 is a part of the chapter on habitual criminals. Without deciding this point, it is clear the procedure outlined in section 747.4 has been followed in prosecutions under section 321.281 for many years and in fact has been the only method approved by this court for showing prior convictions. Section 321.281 makes it an offense to operate a motor vehicle on the public highways of the state while intoxicated, and provides penalties for the first, second, third and subsequent offenses. We have uniformly held that second, third and subsequent offenses must be alleged in the indictment and proved beyond a reasonable doubt before the additional penalties can be imposed. State v. Smith, 129 Iowa 709, 713, 106 N.W. 187, 4 L.R.A.,N.S., 539, 6 Ann.Cas. 1023; State v. Lowe, 235 Iowa 274, 277, 16 N.W.2d 226; State v. Barlow, 242 Iowa 714, 718, 46 N.W.2d 725; State v. Gardner, 245 Iowa 249 261, 61 N.W.2d 458; State v. Biggins, 245 Iowa 903, 905, 63 N.W.2d 292.

The same rule is laid down in 42 C.J.S. Indictments and Informations § 145b(1), (a): 'The general rule requires an indictment or information to allege convictions of prior offenses, where such prior convictions would enhance the punishment * * *.' Other jurisdictions have held to the same requirement. People v. Hightower, 414 Ill. 537, 112 N.E.2d 126, 130 ('We do not agree with defendant's contention that his prior conviction should have been deleted from the indictment. * * * we are of the opinion that it is necessary to plead this fact to justify a conviction and sentence under the aggravated penalty clause.'); MeDonald v. Commonwealth, 173 Mass. 322, 53 N.E. 874, 875 ('It was necessary to allege and prove the previous convictions. * * * They did not constitute of themselves a crime * * *.') (Italics supplied.); Evans v. State, 150 Ind. 651, 50 N.E. 820 ('The doctrine that when a statute imposes a greater punishment upon second and subsequent convictions of an offense, the former conviction must be alleged in the indictment and proved at the trial, or the same can only be punished as a first offense, is sustained by the great weight of the authorities.'); People v. Rosen, 208 N.Y. 169, 101 N.E. 855, 856 ('It is so well settled as to be conceded upon this appeal that the severer...