State v. Hall

• Decision Date: 19 October 1943
• Docket Number: No. 46351.,46351.
• Citation: 233 Iowa 1268,11 N.W.2d 481
• Parties: STATE v. HALL.
• Court: Iowa Supreme Court

233 Iowa 1268

11 N.W.2d 481

STATE

v.HALL.

No. 46351.

Supreme Court of Iowa.

Oct. 19, 1943.

Appeal from District Court, Polk County; C. Edwin Moore, Judge.

Defendant was convicted of manslaughter and appeals.

Affirmed.

R. E. Hanke, of Des Moines, for appellant.

John M. Rankin, Atty. Gen., and Don Hise, Asst. Atty. Gen., for appellee.

MILLER, Justice.

This cause has been submitted to this court on the clerk's transcript of the record pursuant to Sections 13998 and 14010, Code 1939. Examination of the record, as shown by the clerk's transcript alone, discloses no error which would warrant or require a reversal. The clerk's transcript includes a motion for new trial which in turn refers to the evidence in the case. Without the evidence before us we are unable to determine whether there is any merit in certain contentions there made. State v. Evans, 229 Iowa 932, 937, 295 N.W. 433. The reporter's transcript of the testimony has been certified to supply such deficiency. As pointed out in State v. Dunley, 227 Iowa 1085, 290 N.W. 41, and State v. Evans, supra, the failure of appellant to file an abstract of the evidence has forfeited his right to have the evidence reviewed by us. However, in State v. Ferguson, 233 Iowa 354, 6 N.W.2d 856, 858, in a somewhat similar situation where the right to file an abstract had been lost, this court, on its own motion and without setting a precedent, examined the transcript of the testimony which had been certified to us. Such examination was made as a matter of grace, not of right. In the same spirit, we have examined the transcript of the testimony herein.

Guilt of defendant is asserted by reason of an automobile accident which occurred about 8:10 P. M. September 26, 1942, at the intersection of South East First Street and Jackson Ave. in Des Moines, Iowa. At this intersection, First Street is a through highway extending north and south. East and west traffic on Jackson Ave. is required to stop before entering the intersection. Defendant was driving an automobile south on First St. and collided with an automobile operated by Roy Garlick proceeding east on Jackson. After the collision, Garlick's car was stopped in the intersection; defendant's car had continued south over the curbing, turned over on its side, and soon caught fire and burned up. Mrs. Marie Ellen Barlow had been standing in the parking near the sidewalk at the south east corner of the intersection, waiting for a bus. She was struck by defendant's car and was fatally injured.

There are a number of sharp conflicts in the evidence. According to defendant's testimony, he was driving at a speed of 25 to 30 miles per hour as he approached the intersection; he saw Garlick's car approaching from the west; it seemed to slow down as though it were going to stop; defendant thought it would stop for the stop sign but it did not; defendant speeded up, swung to the left, thought he could avoid a collision but didn't. He testified that he may have been travelling 40 miles per hour when the crash occurred. The physical facts were such that the jury might have found that defendant's speed was more than 40 miles per hour. Davidson v. Vast, Iowa, 10 N.W.2d 12.

The evidence offered by the State shows that First St. is 36 feet wide north of Jackson and 24 feet wide south of Jackson, so that, on the east side of First St., there is an offset of about six feet as the street narrows to the south of the intersection. The State's evidence indicated that the collision occurred not more than ten feet west of the east curbing of First St. as extended from the south east corner of the intersection. There was also testimony that the front end of Garlick's car was approximately even with the east curb of First St., as it extends south of the intersection, when the impact occurred. Defendant's car was shown to have turned completely around so that it came to rest on its side headed practically due north with its front end about 44 feet from the curbing at the south east corner of the intersection. Mr. Barlow, who had been standing beside his wife, and Mr. and Mrs. Garlick all testified that Garlick's car came to a complete stop at the stop sign about 24 feet west of the intersection and then proceeded in low gear at about five miles per hour until the impact occurred. Defendant did not claim to have sounded his horn or to have given any warning. Mr. and Mrs. Garlick and Mr. and Mrs. Barlow are shown to have been unaware of defendant's approaching car until a collision was imminent. Defendant did not apply his brakes; instead he speeded up, swerved to the left, then seeing the offset which narrowed the street, swung back to the right as the collision occurred. There was evidence that the speed limit was 25 miles per hour at this intersection.

There was other evidence of course, but the foregoing summary presents the highlights from which the general situation may be understood. Defendant made no motion for a directed verdict and we do not find any assertion in the motion for new trial which might be interpreted as challenging the sufficiency of the evidence to present a jury question as to defendant's guilt.

I. The motion for new trial asserts that the court erred in requiring defendant and the witness Bledsoe, who testified that he was riding with defendant at the time of the collision, to state on cross examination the number of times each had been convicted of felonies. On direct examination defendant testified that he had been convicted of a felony. On cross examination the state inquired concerning the number of convictions. Strenuous objections were made. At first the objections were sustained. Later when the question was again put, the objections...