State v. Glenn

• Decision Date: 15 October 1975
• Docket Number: No. 57505,57505
• Citation: 234 N.W.2d 396
• Parties: STATE of Iowa, Appellee, v. Eugene Edward GLENN, Appellant.
• Court: Iowa Supreme Court

Page 396

234 N.W.2d 396

STATE of Iowa, Appellee, v. Eugene Edward GLENN, Appellant.

No. 57505.

Supreme Court of Iowa.

Oct. 15, 1975.

Morr & Shelton, Chariton, for appellant.

Richard C. Turner, Atty. Gen., Nancy J. Shimanek, Asst. Atty. Gen., John W. Birdwell, County Atty., for appellee.

Heard by MOORE, C.J., and MASON, RAWLINGS, LeGRAND and McCORMICK, JJ.

RAWLINGS, Justice.

Appeal by defendant from judgment on jury verdict finding him guilty of operating a combination of vehicles with gross weight exceeding legal limitations, in violation of The Code 1971, Section 321.463. We affirm.

Defendant (Glenn) was an employee of the Hulcher Emergency Railroad Service (Hulcher). Hulcher's business was to 'clean up' railroad derailment sites. The equipment used included a 'type 583 Caterpillar tractor' with an attached crane. Glenn transported the above described apparatus from one site to another by a truck and trailer.

The combination truck-trailer had six axles thus arranged: #1 was the single steering axle located at the front of the truck; #2 and #3 were the rear axles of the truck, located together beneath the tongue of the trailer attachment; #4, #5 and #6 were triple axles located in a cluster at the rear of the trailer.

June 15, 1972, a special highway commission permit was granted for movement of the overweight sideboom tractor from Russell, Iowa to Lineville, Iowa. This permit was necessary because the load exceeded width and weight regulations for movement on Iowa highways. See Code §§ 321.453, 321E.1. It allowed defendant maximum weights of 36,000 and 54,000 pounds on the 'tandem' and 'triple' axles, respectively.

The aforesaid permit specifically provided it was voidable 'for any violation of a term, condition, provision or limitation of the permit', and 'shall be void in case the weights or dimensions of the vehicle and load as operated' exceed any of those designated.

While defendant was engaged in transporting the sideboom tractor from Russell to Lineville, the loaded vehicle was weighed at an Iowa Highway Commission station. Weight of the load on axles 2 through 6, inclusive, was 88,500 pounds, thus within the 90,000 pound limitation for five axles imposed by § 321.463. But the trailer load was so improperly distributed that 39,400 pounds were concentrated on axles 2 and 3. This was clearly in excess of the aforesaid 'tandem axle' permit maximum. The weighing officers also determined the center-to-center distance from axles 2 to 6 was approximately 38 feet. And in this regard § 321.463 says a 38 foot vehicle may weigh 63,436 pounds without a special permit. Since defendant's loaded vehicle weighed 88,500 pounds the permit restriction was exceeded.

By virtue of foregoing the State, proceeding as though no special permit had issued, charged defendant with a 25,064 pound overage.

Defendant mounts a diffuse assault on his aforesaid conviction, often raising the same or similar issues in overlapping contexts.

Eight frontal attacks are thus made. As best determinable they are reducible to these general subjects: (1) infirmities in the county attorney's information; (2) constitutionality of the per se permit voidance; (3) admission of evidence as to the meaning of 'tandem axle'; (4) submission of the case to a jury; (5) giving of several jury instructions; and (6) overruling defendant's multiple post-trial motions.

These matters will be dealt with in the order presented.

I. February 2, 1973, the Wayne County Attorney filed an information charging defendant had operated 'a combination of vehicles * * * with a gross weight on axles 2 to 6, 25,064 pounds in excess of legal limitations, contrary to sec. 321.463, Code of Iowa'.

March 11, 1974, after the jury had been sworn and empaneled, but prior to introduction of any evidence, defendant filed what is designated a 'motion for directed verdict or to enter a judgment of acquittal'. In support thereof, he invoked several statutory and constitutional provisions. The former are now entertained, the latter will be later considered.

The essence of defendant's first argument can be thus summarized: The information shows he was operating a combination of vehicles under a permit issued pursuant to Code § 321E.1, which statute then provided in part:

'The state highway commission and local authorities may in their discretion and upon application and with good cause being shown therefor issue permits for the movement of vehicles with indivisible loads carried thereon which exceed the maximum dimensions and weights specified in sections 321.452 through 321.466, but not to exceed the limitations imposed in sections 321E.1 through 321E.15. Permits so issued may be single-trip permits or annual permits.'

As previously noted, the information charged a violation of § 321.463. But defendant argues, in essence, he was accorded an exemption by § 321.453. In relevant part the latter enactment says: 'The provisions of this chapter governing size, weight, and load shall not apply to * * * a vehicle operating under the terms of a special permit issued as provided in chapter 321E'.

Upon this statutory premise, Glenn takes the position § 321.463 is inapplicable, and 'the substance of the charge would have to be under 321E'. Presumably, defendant thought he should have been charged, if at all, under § 321E.16, which then stated:

'Proof of violation of any provision of any permit issued under this chapter shall render the entire permit null and void, and shall be punishable in accordance with * * * sections 321.482 and 321.463 for violation of weight limitations. ¹

At the outset, defendant failed to preserve his claimed statute-related error for review. Section 777.3 says, in essence, objections to an indictment relating to matters of substance and form which might be raised by demurrer are deemed waived if not so raised before the jury is sworn. Objections to a county attorney's information are subject to the same rule. See State v. Grady, 231 N.W.2d 869 (Iowa 1975); State v. Grindle, 215 N.W.2d 268, 269--270 (Iowa 1974); State v. Williams, 193 N.W.2d 529, 530 (Iowa 1972); Code § 769.13. See also State v. Medina, 165 N.W.2d 777, 779 (Iowa 1969). Since the jury had been sworn and empaneled when defendant first voiced objection to the information, any challenge as to substance or form thereof was waived.

Furthermore, defendant's renewal of said motions after the State had rested and again at close of all evidence does not aid his cause. In any event, a reading of the statutory enactments here involved amply demonstrates fatal flaws in defendant's claim.

Section 321.463, under which defendant was charged, is unquestionably a penal statute. See State v. Ricke, 160 N.W.2d 499, 500 (Iowa 1968); State v. Balsley, 242 Iowa 845, 852, 48 N.W.2d 287, 291 (1951). Therefore, unless § 321.453 so governs as to take the case beyond the purview of § 321.463, a prosecution under the latter section would be proper. We conclude the exemption statute, § 321.453, is not here controlling. Since this enactment establishes exceptions to motor vehicle load limitations specified in § 321.463, it is an exemption statute to be strictly construed against one claiming any benefit thereunder. See State v. Ricke, 160 N.W.2d at 500. See also State v. Mc.donald, 197 N.W.2d 573, 574 (Iowa 1972). Defendant failed to show he 'comes fairly within the exception'. See State v. Ricke, supra. In addition, by its very working, § 321.453 exempts only those vehicles 'operating Under the terms of a special permit issued as provided in chapter 321E'. (emphasis supplied). The short answer to defendant's instant contention is that his truck-trailer combination was Not operating within the express terms of his permit, i.e., it was 3400 pounds overweight on the tandem axle.

The same general argument advanced by defendant was considered and rejected in State v. Weaver, 79 Ohio L.Abst. 258, 144 N.E.2d 300 (App.1956). In that case the defendant was found to have operated a truck with a weight which exceeded a special permit allowance and correlatively fined as though no permit had issued. There, as here, the permit stated it was void if actual weight exceeded the maximum allowed by the permit. In affirming a conviction, the court said, 144 N.E.2d at 302:

'The special permit * * * was designed to protect the defendant as a holder of same, providing the conditions assented to were complied with, otherwise the defendant would be amenable and subject to the penalties as specifically prescribed by the legislature for hauling a load in violation of the requirements of the law.'

See also Mangham v. Bowen, 204 So.2d 907 (Fla.App.1967); People v. Kueper, 111 Ill.App.2d 42, 249 N.E.2d 335 (1969); People v. Freehill, 129 Ill.App.2d 234, 262 N.E.2d 604 (1970); Annot., 45 A.L.R.3d 503, 554--556.

Briefly stated, the instantly involved special permit was issued for defendant's use and protection subject to compliance with the terms thereof. Otherwise, it was automatically voided, thus making defendant amenable to the penalty prescribed by law for overweight vehicles as though no special permit had issued. Glenn's contentions to the contrary are untenable.

II. Defendant's second challenge as to sufficiency of the information focuses upon absence in the appended minutes of testimony giving express notice regarding proposed evidence as to the longitudinal distance between axles 2 and 6, and nullification by violation of the special permit. As best determinable, he contends the offense charged is grounded upon a violation of his special permit and that a violation of § 321.463 arises from distance between axles And total weights thereon. Claiming a failure of such information-related notice in each respect, he argues the State failed to establish a prima facie case.

This argument is patently without merit. Insofar as these objections attack the substance and form of the information, they were not timely voiced and therefore, as...