State v. Hammer

Decision Date19 October 1954
Docket NumberNo. 48419,48419
Citation66 N.W.2d 490,246 Iowa 392
PartiesSTATE of Iowa, Appellee, v. Code L. HAMMER, Appellant.
CourtIowa Supreme Court

Jones, Cambridge & Carl, Atlantic, for appellant.

Leo A. Hoegh, Atty. Gen., Raphael R. R. Dvorak, Asst. Atty. Gen., and Lester L. Kluever, Cass County Atty., Atlantic, for appellee.

SMITH, Justice.

Defendant was convicted under an indictment that charged the crime of operating a motor vehicle upon a public highway while intoxicated, 'it being the second defense * * *.' The alleged situs was Atlantic, Cass County, Iowa. The indictment was filed October 6, 1952, and did not allege the date of the charged offense. The evidence however fixed the time as the evening or near midnight of July 24, 1952. The alleged date of the first offense was 'during or about the year 1946.' The offered proof showed conviction in that case was October 18, 1946, upon a plea of guilty as charged. The information in the earlier case charged the offense as committed on or about October 4, 1946, also in Atlantic.

The testimony in the instant case as to defendant's condition the evening of July 24, 1952, was conflicting and various motions were made by defendant at the close of the State's evidence in chief and again when rebuttal evidence closed. The case was once reopened (over defendant's objection) to permit further evidence as to the alleged first conviction. Further details will be developed as we discuss the assigned errors. The jury found defendant guilty, motions to withdraw issue and for directed verdict were overruled and judgment pronounced. Defendant has appealed.

I. Six errors are assigned by defendant. Five concern procedure and proof relating to the question of the alleged former conviction. The remaining one urges the evidence was insufficient to prove beyond a reasonable doubt that defendant was guilty of the principal offense charged.

This last assignment is based on denial of defendant's motion for directed verdict. Defendant argues, principally on the authority of State v. Hamer, 223 Iowa 1129, 274 N.W. 885, and State v. McKenzie, 204 Iowa 833, 216 N.W. 29, that conviction based 'solely on the self-contradictory statements of the State's witnesses, cannot stand.'

An examination of these cases reveals that the decisions are mere expressions of the familiar doctrine, enunciated in State v. Wise, 83 Iowa 596, 50 N.W. 59, and in State v. Reinheimer, 109 Iowa 624, 80 N.W. 669, 670, that the rule with reference to granting new trials in criminal cases for want of evidence is different from that applied in civil cases: "We will not, in a criminal case, support a verdict, if it be against the clear weight of the evidence."

We have examined these and other cited cases but find no support for the argument that mere contradictions in the testimony of the state's witnesses require it to be disregarded in determining as to the sufficiency of the evidence to go to the jury.

We do not believe the testimony of the law enforcement officials was so destroyed here by any such contradictions. We cannot say the verdict was against the clear weight of the evidence.

It is difficult to argue by resort to precedents the comparative weight of conflicting evidence and to determine when it 'clearly' preponderates in favor of defendant. Facts vary and can seldom be measured by precedent. We must be careful not to usurp or invade the province of the jury.

So much as possible we must generalize the principles of applicable law. We have often said, for instance, that even in criminal cases we must view the record in the light most favorable to the State. See State v. Rutledge, 243 Iowa 179, 184, 47 N.W.2d 251; State v. Williams, Iowa, 1954, 62 N.W.2d 241.

A statement of an analogous rule, if not indeed basically the same rule, is found in State v. Anderson, 239 Iowa 1118, 1125, 33 N.W.2d 1, 6: '* * * the case should be submitted to the jury if there is substantial evidence tending to support, or reasonably tending to support the charge.' (Citing cases.) And in determining the sufficiency of the evidence it is proper to consider only the State's evidence. State v. Williams, supra. For a good discussion of both aspects of the rule, see State v. Manly, 211 Iowa 1043, 1046, 233 N.W. 110. See also State v. Harrington, 220 Iowa 1116, 1123, 264 N.W. 24.

It is only when the State's witnesses so contradict themselves as to destroy entirely the probative effect of their testimony we can say a question of law is generated. Skillful cross-examination frequently weakens the effectiveness to the jury, but seldom destroys a witness' direct testimony.

We cannot say here there was no factual foundation for the verdict. The sheriff saw defendant immediately after the arrest, talked to him, smelled his breath, says he wobbled a little when he walked and concludes: 'I think I could tell by looking at a man, watching his actions, his movements, looking at his eyes and hearing him talk, watching him walk, whether he is intoxicated, and in my opinion Code Hammer was intoxicated.' He had known defendant thirty years. He testified the doctor said 'he couldn't afford to get into any more trouble.'

The defendant had just been brought in by the arresting officers who had trailed him as he drove his automobile ten or twelve blocks on the streets of Atlantic. Nine and a half blocks of the distance was on Highway Six.

One says: 'I observed the driving of that car in a weaving manner, zig-zagging the highway. He was across the center line back and forth the street, several times * * *.'

Another testifies: 'I observed that he was doing a lot of weaving back and forth most of the way, maybe two or three feet across the middle, maybe more. * * * I suppose he went a block or a little more than that after I tried to stop him. We got along side of him and crowded him over and Dr. Code Hammer was the driver of the car. I have known him for fifteen years.' The testimony of a third officer who had known defendant for ten years was similar.

The cross-examination of those witnesses was calculated to minimize their testimony in some respects in the minds of the jury members but we cannot say it was so weakened as to require or justify a directed verdict.

The doctor's own testimony is not too convincing as to his complete sobriety. 'I left (home) in the neighborhood of seven o'clock; I went to the office, I had some laboratory work * * *. I spent an hour and three quarters to two hours there * * *. I had two drinks of liquor at the office * * *. I went * * * to the Menuette to have a cup of coffee around nine o'clock * * *. I was looking for Olef Johnson who runs the Harlan Flying Service * * *.'

He says he went to the ball game about 9:15. After the game: 'I went to a vacant apartment I had and was checking the water softener and charging (it). * * * I started the water softener to put brine in the tank and salt which you run through by working valves * * *.' That took 'an hour or an hour and a half.' He says he still wanted to see Mr. Johnson: 'I wanted to talk with him in connection with some matters of the flying club.'

He details at length his further search for Johnson ('as I had been told he was in town')--to the Menuette, out to the truck shop, looked in at the White Rose, back to the Menuette (for a cup of coffee) and finally back to the office 'to turn on the air conditioner'--truly a busy evening for a busy dentist. One witness saw him at the Menuette 'about five minutes to 12:00.' He testifies: 'Why, he was sitting at the counter trying to drink coffee and he spilled it all over the counter.'

Defendant made no explanation of the bottle of 'liquid' in his car with a Schenley's label--'a pint bottle and an Iowa seal with approximately an inch and a half left in the bottle.' Witnesses testified it smelled like whiskey.

After being taken to the sheriff's office the defendant declined to permit the doctor (who arrived about 12:30) to examine him. The sheriff testified 'Dr. Long said, I am here to give you an examination and Code said, well I'm not going through that any more.'

We have discussed mostly testimony for the State as it is not our province to determine questions of fact further than necessary to make certain a jury question was presented. There was ample for that purpose.

II. Defendant strenuously insists there was no competent evidence of the alleged former conviction and claims incompetent evidence on that question was erroneously admitted.

When the State first closed its case defendant moved to withdraw the issue, arguing the only evidence of the former conviction was the Court calendar of October 18, 1946 (Exhibit 3). It showed the action as 'O.M.V.I.' but did not otherwise specify the nature of the charge. The entry, signed by the then presiding judge, contained the usual statements as to arraignment, plea, waiver of time, etc., and pronouncement of sentence.

It contained vertical columns headed, respectively, 'Month,' 'day,' 'year,' 'Rec.' and 'Page.' At the bottom of the 'Rec.' column appeared the figures '12,' and of the column headed 'Page' the number '401.'

The clerk first testified he had 'the complete District Court Record No. 12' in his custody and that the record of State of Iowa v. C. L. Hammer, No. 2612, appeared on page 401. When it was produced, identified and offered, the following colloquy took place:

Defendant's counsel: 'That is the original judgment entry?'

Witness: 'It's the official of the District Court Record.'

Defendant's counsel: 'But it's not the official judgment entry signed by the Court?'

Witness: 'It is not the original entry by the Court.'

Counsel: 'I object to that as it is not the proper record, not the best evidence.'

It is not clear at this point whether counsel was objecting because the judge had not signed the court record as provided by section 604.38, Iowa Code 1950, I.C.A., or because it was not in fact, as he said...

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