State v. Gardner

• Decision Date: 15 December 1953
• Docket Number: No. 48285,48285
• Citation: 245 Iowa 249,61 N.W.2d 458
• Parties: STATE v. GARDNER.
• Court: Iowa Supreme Court

Page 458

61 N.W.2d 458

245 Iowa 249

STATE v. GARDNER.

No. 48285.

Supreme Court of Iowa.

Dec. 15, 1953.

Bailey C. Webber and Hal P. Beck, Ottumwa, for appellant.

Leo A. Hoegh, Atty. Gen., Raphael R. R. Dvorak, Asst. Atty. Gen., Richard M. Ackley, County Atty. of Wapello County, Ottumwa, for appellee.

BLISS, Justice.

On June 24, 1952, defendant was arrested and charged with operating a motor vehicle on the public streets of Ottumwa, Wapello County, Iowa, while in an intoxicated condition. On a preliminary hearing on June 29, 1952 he was bound over to the grand jury, which returned an indictment on September 15, 1952, charging him with so operating a motor vehicle, as a third offense. With respect to two previous convictions, the indictment charged: that on or about August 1, 1938, defendant entered a plea of guilty to a charge of operating a motor vehicle while intoxicated in the District Court of Wapello County, Iowa, which found and determined that he was guilty as charged, and sentenced him as by law provided; a record of which judgment was entered in criminal docket 107 at page 142, District Court Record 75, page 13, designated as criminal case No. 7046; and that on or about September 14, 1948, defendant entered a plea of guilty, in the District Court of Monroe County, Iowa, to a charge of operating a motor vehicle while intoxicated, on which plea that court determined him guilty as charged and sentenced him as by law provided; a record of which judgment in said court was entered in criminal docket 56 at page 151, District Court Record 40 at page 99, designated as criminal case No. 15651.

Defendant, as a witness for himself in the trial of the action at bar, admitted that he was operating his automobile on June 24, 1952, on the streets of Ottumwa, when he was arrested by the peace officers of that city. In the printed record, defendant did not set out any of the evidence bearing upon his intoxication or nonintoxication with respect to the principal charge in the indictment. Plaintiff amended the record as abstracted to show testimony of defendant that within a few hours before his arrest on June 24, 1952 he had drunk two or three bottles of beer, and that because of some defect in the steering mechanism of the car he had difficulty in parking it and drove one wheel over the curb; and that after his arrest the police officers and a doctor had put him through some physical maneuvers commonly used to determine intoxication; and that he had refused to submit to a test of the alcoholic content of his blood.

When the state rested after the presentation of its evidence in its main case, defendant made a motion that the court withdraw from the consideration of the jury that part of the indictment with reference to his prior convictions, respectively, in the Wapello District Court, and in the Monroe District Court and also to withdraw from the consideration of the jury all documentary evidence, exhibits and court records with reference to these earlier convictions. At the close of defendant's evidence he filed another motion in large part the same as the one referred to above. Both motions were overruled. Defendant then moved that the court direct the jury to return a verdict against the State and for the defendant. After the jury had returned its vedict defendant moved that the verdict be set aside and that a new trial be ordered on the merits. The only grounds alleged in any of these motions for granting the relief asked therein were that the prior convictions had not been established by competent or sufficient evidence. There was no allegation in any motion that the evidence was insufficient to sustain the jury's verdict that defendant was operating a motor vehicle while intoxicated on June 24, 1952. In fact, defendant, subject to the Court's ruling on his motion for new trial, made application 'that the Court should on its own motion reduce the finding of the jury to guilty of operating a motor vehicle while intoxicated, first offense, and render judgment accordingly.' And in this court he urges the incompetency of the State's evidence to establish the prior convictions, and argues: 'Therefore, it is contended by the appellant that the court should reverse, although not necessarily remand, same for new trial, in accordance with the ruling in State v. Barlow, supra (242 Iowa 714, 46 N.W.2d 725), where the court held that failure of proof of prior convictions did not necessitate a new trial, but the court could of it own volition reduce the same to a lower penalty. In this case it is submitted the reduction should be guilty of operating a motor vehicle while intoxicated, first offense.'

The only question before this court is whether the two prior convictions of defendant were established by competent and sufficient evidence. Section 321.281, Code of Iowa, I.C.A., provides that whoever, while in an intoxicated condition, operates a motor vehicle upon the public highways of the state, shall upon conviction or a plea of guilty be punished, for a third offense, by imprisonment in the penitentiary for a period not to exceed three years. The burden is on the state to establish beyond a reasonable doubt the guilt of the accused on the principal charge, and also the fact of his two prior convictions of the offense.

There was evidence of the following matters with references to the first conviction. The chief of police of Ottumwa, as a witness for the state, brought into court the Ottumwa Police Record Book going back to 1938, and certain other items of evidence of which he was the official custodian. On pages 48 and 49 of said Record Book is this entry:

'#773 Arthur Gardner July 18, 1938 O. M. V. W. I.'

On page 97 of the Police Judge Docket No. 7 is shown an action by the State of Iowa vs. Arthur Gardner charging him with 'Driving a Motor Vehicle while intoxicated', and that the accused was arrested and arraigned on an information filed on July 16, 1938, and that on a plea of not guilty defendant waived to the Grand Jury, August term 1938. Photographs, both front and profile, of the accused were taken on July 18, 1938 by the officers, as were also his fingerprints. The accused placed his signature 'Arthur Gardner' on the fingerprint card. Defendant's objection to pages 48 and 49 of the police record as irrelevant, incompetent and immaterial was overruled.

The county attorney then stated: 'We have the fingerprints taken 1938 and the fingerprints taken when the defendant was arrested this last time for operating a motor vehicle while intoxicated.' Defendant's attorney then said: 'If the Court please, to shorten this up the defendant will concede that the Arthur Gardner arrested, as shown by police records on July 16, 1938, is one and the same person as Arthur Gardner arrested by the Ottumwa police on June 24, 1952.'

To the offer in evidence of the fingerprints of 1938 for identification, defendant then stated: 'I object to that as not proof of identification, but an attempt of proof of previous crime, and not competent with respect to proof of conviction of any previous crime, but only with reference to the accusation thereof, highly prejudicial, especially in the light of the concession as to identity, and therefore irrelevant and immaterial. I further object that the matter of identity is irrelevant and immaterial in the light of the fact that there is no competent evidence of the prior conviction.' The fingerprint card of defendant made on June 25, 1952 and signed by him was then admitted over the same objection by defendant.

Profile and front photographs of defendant, taken June 25, 1952, were received in evidence without objection. To the offer of page 97 of the Police Judge Docket, supra, defendant objected that it was irrelevant, immaterial and incompetent to prove or as tending to prove any prior conviction. The objection was overruled. The chief of police testified that the police judgment docket from April, 1938 to October, 1938 showed only the one charge against an Arthur Gardner.

An Ottumwa police officer testified that he took the photographs of the defendant on June 25, 1952, and also four sets of fingerprints, one of which sets he sent to the Bureau of Criminal investigation of the Iowa Department of Public Safety. A fingerprint technician from this Bureau, as a witness for the state, testified that he found two sets of fingerprint cards in the files of the Bureau with reference to Arthur Gardner, one of which bore date of July 18, 1938 and the other, June 25, 1952, and that it was his opinion that the two sets were of the same person.

The clerk of the district court of Wapello County and custodian of its records, as a witness for the state brought with him certain court records and files. One of these was District Court Record No. 75. On page 13, are, in substance, the following proceedings: April Term 97th day, Aug. 1938--No. 7046 State of Iowa va. Arthur Gardner--Sentenced--Defendant present. Arraigned. Says he is charged by his correct name, and did not want any attorney. Waives time and enters plea of guilty to charge in the information, and consents that sentence be pronounced at this time. 'Sentence pronounced that the defendant be imprisoned in the County Jail of Wapello County for a period of three months. Appeal bond fixed at $300. On showing made sentence is suspended during good behavior and defendant is paroled to the Sheriff of Wapello County, Iowa, and required to report to the Sheriff every sixty days for one year.'

Since the judgment did not designate the offense charged against the defendant and to which he had pleaded guilty, the state, to supply this information, introduced from the court files in the action, produced by the clerk of the court, the information filed by the county attorney accusing the prisoner, Arthur Gardner, of the crime of operating a motor vehicle while intoxicated on the streets of Ottumwa, in Wapello County, Iowa, on July 16, 1938.

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