State v. Hiatt, No. 45558.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: HALE
• Citation: 231 Iowa 499,1 N.W.2d 664
• Parties: STATE v. HIATT.
• Decision Date: 13 January 1942
• Docket Number: No. 45558.

231 Iowa 499
1 N.W.2d 664

STATE
v.
HIATT.

No. 45558.

Supreme Court of Iowa.

Jan. 13, 1942.

Appeal from District Court, Dallas County; Norman R. Hays, Judge.

Defendant was convicted of the crime of operating a motor vehicle while intoxicated, and appeals.

Affirmed.

[1 N.W.2d 665]

Walter F. Maley and James E. O'Brien, both of Des Moines, for appellant.

John M. Rankin, Atty. Gen., Jens Grothe, Asst. Atty. Gen., and Robert E. Frush, Co. Atty., of Adel, for appellee.

HALE, Justice.

This is an appeal from a conviction under Section 5022.02, Code of 1939, providing that, “Whoever, while in an intoxicated condition or under influence of narcotic drugs, operates a motor vehicle upon the public highways of this state, * * *”, providing the penalty, and also providing the penalty for a second offense. The information herein charges that the offense was committed on October 9, 1940, and alleges that this was a second offense. To the charge made in the information a plea of not guilty was entered, and trial had which resulted in the conviction of the defendant.

The defendant had been in the city of Des Moines during the day, and drove west toward Adel, passing through the town of Waukee, which is about 7 miles east of Adel. Preceding him was Miss Anna B. Hunt, who had also been in Des Moines on that day and had taken the bus to Waukee, and from there on drove her car which she had left at Waukee during the day. She drove west on highway No. 6 from Waukee toward Adel. At a point just before reaching a culvert, or, as it is sometimes called, a bridge, her car was struck by the car of the defendant and passed on over the bridge; and when the cars finally came to rest her car was 88 feet west of the west end of the bridge and the defendant's car was 114 feet 5 inches east of the east end of the bridge, which is 135 feet 7 inches long, making the total distance the cars were separated 338 feet. Miss Hunt was injured by the impact of the cars. Defendant claims that in the car with him was one Marion Brauer, who was driving the car. When it came to rest the Hunt car was turned somewhat to the south and mostly on the north shoulder of the road. One witness stated that it was completely off the paved part of the highway. Miss Hunt observed Hiatt approaching from the east about the middle of the bridge. Some conversation was had which will be referred to hereafter, and they then walked back to the east toward the Hiatt car, where the sheriff, Evan Burger, and a newspaper man by the name of Snyder, had arrived and were standing. There was some talk between the sheriff and the defendant, and the sheriff then towed defendant's car into Adel and conducted the defendant to Dr. Mullmann's office. The defendant at first refused to go, but finally was taken to the office by the sheriff. There followed the preliminary examination, information, and trial and conviction.

It is, of course, necessary before conviction for this offense that it be established, first, that the defendant was driving, and second, that he was intoxicated at the time. Burger, Miss Hunt, Ralph Harden, the deputy sheriff, John Snyder, and Dr. Mullmann all testified that the defendant was at the time intoxicated. Other witnesses who saw the defendant at the Clark filling station about 6 o'clock, or a little later, testified to the contrary. It is not necessary to further review the testimony as to that point.

As to the question of who was driving the car there is more controversy, and it will be necessary to review to some extent the testimony on that point.

At the close of all the evidence defendant moved for a directed verdict on the ground that the evidence was insufficient to convict, which motion was overruled by the court. There were no exceptions taken

[1 N.W.2d 666]

to the instructions or any of them. After verdict motions to set aside the verdict and for a new trial were overruled.

There were several witnesses for the State. Miss Hunt, the prosecuting witness, testified that just east of the culvert or bridge her car was struck by a car, and when she got her car stopped Hiatt left his car and came toward her, and she said, “You are the man who struck me,” and he said, “I suppose I am, but you didn't have any tail-light;” but she testified, and was supported by other testimony, that the tail-light was actually still burning. They walked back to his car. John Snyder and Evan Burger, the sheriff, were there. She then became ill and was taken into town by Snyder in the sheriff's car. The time her car was struck was about 6:30 or 6:40 in the evening, and she testified that the defendant at the time was drunk. On cross-examination she said that when she finally stopped her car she pulled up on the shoulder of the road, with the motor still running;. she then shut off the power and got out of the car. She then saw Hiatt coming toward her. On redirect examination, after evidence had been introduced by the defendant as to the presence of Brauer, she stated that she saw nobody go by her car, either on the north or the south side of the car; that she saw but one man (Hiatt) coming toward her, and that there was one light from Hiatt's car and her tail-light, and that there was only one man. There was no one along the side of the road or anywhere else on the highway. She did not think there was room enough on the shoulder on the north side of her car for anyone to pass, but was not positive as to that. She did not think it was possible that a man could walk by there without her seeing him, but she would not want to swear that nobody went by there. She said she thought she was getting in the ditch before she stopped her car, and the road was on top of a high grade where the car stopped. On cross-examination she stated, in response to inquiry by counsel for defendant, that she was more or less upset by the collision and having been hit, and that she did not look back until after she got out of the car, and then looked toward the east and saw only the one man approaching. When she got out of the car she got out backward and faced to the north, and saw no one. She stated she sat in the car only an instant, just long enough to open the door and get out, after she stopped, and that it could be possible that someone passed the car, although she did not think so.

The first person to arrive at the scene of the collision was Mr. Snyder, who drove from Adel and arrived about five minutes after the accident. This witness stated that he observed both cars, slowed his car somewhat, and walked to the Hiatt car. At that time Burger, the sheriff, approached in his car and parked. At the bridge, coming east, he observed Hiatt and Miss Hunt. He stated that afterward, at the request of the sheriff, he took Miss Hunt to the doctor's office, and returned. While there the first time he had a conversation with Hiatt, and the defendant said to him, after he had finished talking with Burger, that the latter had asked him how the accident happened and he stated he was driving 50 to 60 miles at the top of the hill and “kicked the car out of gear.” Sheriff Burger observed Hiatt and Miss Hunt walking toward the east. When asked in relation to the conversation with Hiatt, the witness stated: “He just said to me, after he had finished talking to Mr. Burger and Mr. Burger had asked him how the accident happened, and he said he was driving 50 to 60...