State v. Griffin

• Decision Date: 04 May 1965
• Docket Number: No. 51568,51568
• Citation: 257 Iowa 852,135 N.W.2d 77
• Parties: STATE of Iowa, Appellee, v. Joseph Samuel GRIFF, Jr., Appellant.
• Court: Iowa Supreme Court

Page 77

135 N.W.2d 77

257 Iowa 852

STATE of Iowa, Appellee, v. Joseph Samuel GRIFF, Jr., Appellant.

No. 51568.

Supreme Court of Iowa.

May 4, 1965.

Mason, Schroeder & Allison, Mason City, for appellant.

Lawrence F. Scalise, Atty. Gen., Don R. Bennett, Asst. Atty. Gen., and Phillip N. Norland, Worth County Atty., for appellee.

THORNTON, Justice.

Defendant has been convicted of the crime of operating a motor vehicle while in an intoxicated condition, third offense, and sentenced accordingly. Section 321.281, Code of Iowa, 1962, I.C.A.

In presenting this appeal defendant's court appointed counsel has fully abstracted the record and advised us in oral argument he could find no grounds for appeal other than the one presented, which was not raised at the trial. As requested, and as directed by section 793.18, Code of Iowa, 1962, I.C.A., we have carefully examined the record and find no error. There is sufficient evidence to sustain the verdict and there is no error in the instructions, unless of course the matter presented is so considered.

I. The contention made for reversal is, the trial court erred in permitting the county attorney to read that part of the information which related to defendant's prior convictions for operating a motor vehicle while intoxicated at the outset of the trial, and in giving Instruction 1 stating the contents of the information which included the prior convictions. It is contended reading the information including the prior convictions at the commencement of the prosecution destroys the impartiality of the jury to such an extent defendant is denied due process under the federal constitution. And, that in such manner defendant's character and previous criminal record are placed in issue at the outset of the trial in violation of the rule that defendant's reputation may not be placed in issue until such time as it is raised by the defendant himself.

The practice followed by the trial court has been held proper in recidivist cases since the enactment of chapter 109, 27th General Assembly, in 1898 (now sections 747.1-747.4, inclusive, Code of Iowa, 1962, I.C.A.) and the enactment of chapter 72, section 24, by the 34th General Assembly in 1911 (now section 321.281, Code of Iowa, 1962, I.C.A.).

Section 747.1 requires prior convictions to be referred to in the information or indictment. Section 747.4 requires the jury on a plea of not guilty, to find and determine whether the defendant has been previously convicted as alleged. Section 780.5, Code of Iowa, 1962, I.C.A., requires the information be read to the jury as the first order of the trial. This practice has been uniformly followed in cases under section 321.281. We have uniformly held the prior convictions must be stated in the information and proved beyond a reasonable doubt before the more severe penalties may be imposed. State v. Eichler, 248 Iowa 1267, 1270, 83 N.W.2d 576; State v. Fisk, 248 Iowa 970, 83 N.W.2d 581; State v. Gardner, 245 Iowa 249, 61 N.W.2d 458; State v. Barlow, 242 Iowa 714, 46 N.W.2d 725; and Copenhaver v. Bennett, 254 Iowa 136, 116 N.W.2d 495, cert. den. 373 U.S. 242, 83 S.Ct. 1295, 10 L.Ed.2d 410. The trial court should, as it did in this case, instruct the jury the evidence of prior convictions is not to be considered in determining the defendant's guilt of the primary crime. It is not proper to instruct on the prior convictions if proof thereof is insufficient. State v. Smith, 129 Iowa 709, 715, 106 N.W. 187. Likewise, where the defendant admits the prior convictions it is not proper or necessary to instruct thereon or include such prior convictions when reading the information or indictment to the jury at the commencement of the trial. It is improper to present an issue that is conceded.

II. Defendant asks us to reverse the conviction and adopt a procedure for practical purposes identical with the procedure provided in House File 565 now under consideration by the 61st General Assembly. The procedure proposed is simply that the portion of the information or indictment referring to prior convictions not be read or otherwise be presented to the jury until they have reached a verdict on the primary offense. If the jury finds the defendant guilty of the primary offense, then the same or another jury at the discretion of the trial court is impaneled to determine the issue or issues arising on the prior convictions if the defendant does not plead guilty to such. Then sentence and judgment are entered as prescribed. See State v. Ferrone, 96 Conn. 160, 175, 113 A. 452, 457, where the Connecticut court adopted a procedure similar to that prescribed by statute in England.

A majority of the members of this court are of the opinion the proposed procedural change, while meritorious and representing the modern view on proper procedure in these cases, should not be made by us while the General Assembly is considering corrective legislation similar to that adopted by statute in a number of states. This view is based not only on the General Assembly's present consideration of the problem but because a question of denial of due process is not reached.

In the cases cited by defendant, only two hold the reading to the jury of that portion of the information relating to prior convictions destroyed the impartiality of the jury and denied the defendant due process of law. Lane v. Warden, Maryland Penitentiary, 320 F.2d 179, 187 (4th Cir.1963); and State v. Sayward, 63 Wash.2d 485, 387 P.2d 746, 751. The other cases cited by defendant all base the decision not on a denial of due process but because of the possible prejudice to the defendant in placing the prior convictions before them at the outset of the trial. The reason for decision in these cases is the rights of the defendant to a fair and impartial trial are better protected, both prejudice and sympathy are effectually eliminated. State v. Ferrone, 96 Conn. 160, 174, 113 A. 452, 457; State v. Johnson, 86 Idaho 51, 383 P.2d 326, 332 (that a number of cases hold there is no prejudice, see State v. Johnson, supra, at page...