State v. Franklin

• Decision Date: 06 March 1951
• Docket Number: No. 47622,47622
• Citation: 46 N.W.2d 710,242 Iowa 726
• Parties: STATE v. FRANKLIN.
• Court: Iowa Supreme Court

Page 710

46 N.W.2d 710

242 Iowa 726

STATE v. FRANKLIN.

No. 47622.

Supreme Court of Iowa.

March 6, 1951.

Rehearing Denied May 11, 1951.

Welch & Welch, of Logan, for appellant.

Robert L. Larson, Atty. Gen., Don Hise, First Asst. Atty. Gen., Michael Murray, Harrison County Atty. of Logan, for appellee.

BLISS, Justice.

The defendant, 48 years old at the time of the trial, with his wife and two children, had his home south of the railroad tracks in the city of Missouri Valley, Iowa, at which location he operated a cafe and a service station and truck stop. His home and place of business were adjacent to the Boyer River, which emptied into the Missouri River about seven miles distant. On March 5, 1949 there was an ice jam at the mouth of the Boyer River which caused its waters to back up and overflow an extensive expense of territory driving many people from their homes. In defendant's home the water was 28 inches above the floor, and in the cafe and oil station it was 49 inches higher than the floors, and remained there for about six days. On March 11th it was still muddy in spots back of his place of business. For a time a boat was necessary in going to and from his buildings. Some of his electric equipment had to be taken to Council Bluffs and Omaha to be reconditioned. He left home in his 1948 Dodge automobile to make such a trip about 11 o'clock in the forenoon of March 11th. He left Omaha for the return trip about 8:45 o'clock in the evening and stopped at the music store of Mr. Stivers in Council Bluffs to purchase some records for his music box. He testified that he drank no intoxicating liquors at any time on March 11th. Leaving Council Bluffs, which is about 25 miles south of Missouri Valley, he testified that he drove north on the paved highway at a speed of 60 or 70 miles an hour, and as he approached the south end of the bridge over the Boyer River, with the dimmers on, just below Missouri Valley, a truck, with dimmed headlights, was coming south across the bridge and as it came down the incline from the bridge its lights lowered and blinded him. As it passed, he, for the first time, saw a car parked on the east shoulder and partly on the paving, which he said he was unable to avoid, and the right front corner of his car struck the rear left corner of the parked car. The right knee of the steering apparatus of his car was disabled so that he was unable to guide his car, and after going north across the bridge, to avoid approaching traffic, he turned his car to the right into the ditch and came to a stop upright among some ice cakes in the river bottom.

The car which was struck by defendant's car was a 1929 Model 'A' Ford car being driven by Levi Graham of Omaha, who was proceeding, with hiw wife and two children and a 19 year old boy named John Spickler, to Denison, Iowa. The lights of the car had not been working well, and that was the reason for their stopping. Arthur Lewis, an Omaha truck driver, testified that he left Missouri Valley for Council Bluffs about 9:00 P.M. and as he approached the bridge he saw an Allied Van Lines truck ahead of him about 600 feet, and saw its stop light as the truck started to slow down, and then a car came from the south around the truck weaving back and forth across the road several times; that he (Lewis), fearing a collision, stopped his truck and the approaching can went into the ditch on the east side of the road before it reached him, about 150 or 200 feet north of the bridge; that he left his truck and saw a man get out of the driver's side of the car in the ditch and start toward the highway; that he got out of his truck and helped the man up the bank, and when he asked him if he was hurt he said he did not think he was; at his request, he went down and turned off the lights in the car and saw various articles in the car; when he returned, the man, who said his name was Franklin, was in the truck, where they both sat for about ten or fifteen minutes until peace officers--four of them--began to arrive; one of the policemen opened the truck door and Franklin stuck out a carton of cigarettes to the policeman and asked him if he wanted a drink; he noticed the odor of alcohol on his breath and when he left the truck he observed that his trousers were wet in the crotch and the cushion was wet and there was an odor of urine in the cab; his voice was quite thick, but he did not base his opinion on the clearness of his speech, but on his actions, and on the strong smell of liquor on his breath; he did not get out of the truck until the peace officers arrived, and just before they came he had moved his truck farther south.

The first officers to arrive were Don Conaway, the Chief of Police of Missouri Valley and Hugh Fry, a special policeman. Conaway testified that a call came through his station reporting an accident around 9:30 P.M., and when they reached the disabled Ford car they found the defendant in the Lewis truck. Highway Patrolman Sober arrived about this time, about ten or fifteen minutes after the accident, and he and defendant went across the ditch to examine defendant's car, which Sober said was in a field about 500 feet north of the north end of the bridge. Franklin told Sober the car was his and that he had been driving it. In the car were sugar and other articles. Observing a strong odor of alcohol, Sober asked defendant if he had been drinking, and defendant replied, 'A couple, yeah.' Upon defendant's refusal to go with Sober to report at the city hall, Sober arrested him for drunkenness and took him to the city hall in Missouri Valley.

Patrolman Drustrup who had sent Sober to the scene of the accident after receiving a call, later and shortly after 10:00 P.M., accompanied by Conaway, was going out to the bridge, when they met Sober, returning with the defendant, and they turned back to the city hall, where Sober, Conaway, Drustrup, and Fry spent about 45 minutes with the defendant. Graham and Spickler were also there. Drustrup testified that according to his information the collision occurred about 9:30 P.M. The officers were witnesses for the state and each testified that: the defendant was quarrelsome and belligerent in his actions toward them, his voice loud and his language was profane, vile, insulting, and threatening; his speech slurred and confused; his face flushed, his eyes watery and bloodshot, his breath odorous of intoxicating liquor, and he staggered, and was unsteady on his feet; and his trousers were wet in the crotch. Each of these officers had been engaged in his work for a number of years and had much experience with intoxicated persons. Each testified that in his opinion Franklin was intoxicated during the time they were with him. While in the city hall he used abusive language toward Mr. Graham. Young Mr. Spickler, speaking of Franklin, testified that: 'His eyes seemed to be red, his face and complexion was kind of dark, and he kind of wobbled around now and then. I didn't see any cuts or bruises or marks from the accident. As far as I can tell you, all I heard him say is that he was ready to whip anybody that wanted to try to whip him.'

Drustrup testified: 'We questioned Franklin as to whether he had been drinking or not. Sometimes he said he had and sometimes he told me he hadn't, and answered, 'So what if I want to drink; its my business. * * *' We asked him if he wanted a blood test, and he said: 'I'm too damn smart to take one of those', and he said he 'didn't want anything to do with that.'' Drustrup said that in his opinion 'Franklin was very intoxicated.' Patrolman Sober testified: 'I mentioned a urine test. Franklin's answer to that was 'I wouldn't _____ in the jug for you or anybody else.''

Vic Miller, who was engaged in the wrecker service, testified that he saw defendant at the city hall and asked him about bringing in his car and he gave him permission. He heard him talk to the peace officers with considerable profanity, and said that his eyes were bloodshot and he had 'a wobbliness and unbalance to his walk', and that he appeared 'to be very intoxicated.'

Sheriff Bullis testified that when defendant was brought to the jail at Logan about 10:30 or 10:45 P.M. on March 11th, he was unsteady on his feet, the odor of liquor was on his breath, his tongue was thick and he did a lot of stuttering, his face was flushed, his eyes were red, watery, and bloodshot, and 'he was mad at everything.' It was his opinion that he was intoxicated at that time.

Defendant's motion for a directed verdict at the close of the state's case, was on the ground that there was 'an entire failure of evidence on the part of the state to show that defendant had used any intoxicating liquor or was intoxicated prior to the time of the collision with the Graham car.' The motion was denied.

As a witness for himself, defendant, in addition to matters set out in the beginning of this opinion describing the high water and his return from Omaha, confirmed much of the testimony of Lewis and the officers. He admitted he became irritated and 'pretty mad' at the officers, and gave them much trouble that night. He admitted that his clothes were soiled, but not from urine, and that because of the flood he had not had a change of clothing, since practically all of his clothes were ruined. He denied that he was intoxicated or had drunk anything intoxicating on March 11, 1949. It appeared from the testimony of the defense that defendant was taken by Patrolmen Sober and Drustrup from Missouri Valley to the county jail at Logan, and that Sheriff Bullis was awakened and attorneys W. P. Welch and son and the county attorney were called to the jail. Mrs. Franklin also accompanied her husband and those who had him in custody. About 11:45 P.M. or later Mr. Welch, Sr. suggested to the sheriff, and the county attorney, the defendant and his wife and Mr. Johnson and Mr. Linder, friends of the defendant who had called, that they all hold 'a...