State v. Hill

• Decision Date: 04 May 1948
• Docket Number: 47105.
• Citation: 32 N.W.2d 398,239 Iowa 675
• Parties: STATE v. HILL.
• Court: Iowa Supreme Court

32 N.W.2d 398

239 Iowa 675

STATE v. HILL.

No. 47105.

Supreme Court of Iowa

May 4, 1948

Paul B. Holleran, of Clinton, and Frederic M. Miller, of Des Moines, for appellant.

Robert L. Larson, Atty. Gen., Don Hise, First Asst Atty. Gen., and Carroll F. Johnson, of Clinton, County Atty. for appellee.

GARFIELD Justice.

A jury found defendant Robert Hill, age 16, guilty of reckless driving as defined by section 321.283, Code 1946. The crime consists of driving 'any vehicle in such manner as to indicate either a willful or wanton disregard for the safety of persons or property.' Defendant was fined $100 and has appealed to this court.

The prosecution is based on defendant's operation of his father's 1940 Ford V-8 car on the night of January 10 1947, on 'blacktop' primary highway 291 between the small town of Low Moor and Low Moor Corners where 291, from the south, meets east-and-west U. S. Highway 30 west of the city of Clinton. A gravel road south from Elvira meets the north end of highway 291 at Low Moor Corners.

Defendant with his brother, 13, and a young brother-in-law had attended a basketball game at Elvira in which Letha Oberman, 16, was a player. Defendant and his two companions in the Hill car and Letha and six companions in her father's Chevrolet car left Elvira about 10:30, going south on the gravel road. When the Oberman car was on 291 about one-fifth mile south of Low Moor Corners, going south toward the Oberman home near Low Moor, defendant, headed north, crashed into the front of the Oberman car causing the occupants to be badly hurt.

I. There is no merit to defendant's contention he was entitled to a directed verdict because of insufficiency of the evidence. In this connection we must view the testimony in the light most favorable to the prosecution. State v. Rosenberg, 238 Iowa 621, 27 N.W.2d 904, 908, 909. It is necessary to refer only to the evidence which tends to support the verdict. State v Kneedy, 232 Iowa 21, 27, 3 N.W.2d 611, 615, and citations.

There is substantial testimony that soon after he left Elvira until the collision occurred defendant was 'showing off' and attempting to annoy the occupants of the Oberman car and at the time of the collision was trying to frighten them. A short distance south of Elvira Letha stopped her car to fix the defroster. Defendant drove alongside and stopped. Letha then started for the Smith farm, about 1 1/2 miles north of Low Moor Corners, where her younger sister was to spend the night. Defendant drove into the Smith lane ahead of the Oberman car. Apparently in an effort to avoid defendant, Letha went down a side road south of the Smith farm and waited about 15 minutes for defendant to leave. She then returned to the farm. Defendant was still there but left ahead of the Oberman car by driving around it in the lane.

After another apparent attempt to avoid defendant, Letha drove south to Low Moor Corners where one of her passengers lived. When the Oberman car was parked at 'the Corners' to let out this passenger defendant came from the north without lights on his car and circled the Oberman car at a distance of 10 to 15 feet and at a speed of 20 to 30 miles per hour. He then drove north about one-fourth mile without lights, put on his lights to turn around, then drove his unlighted car south again to the Corners. There is evidence defendant then drove east on U. S. 30.

A few minutes later defendant crossed 30 and drove south on 291. His lights were off until after the collision. He turned west into Kunau's lane, lined with trees, one-half mile south of 30, stopped there about a minute, backed out and turned north on 291. Soon after defendant crossed 30, Letha left the Corners to go south on 291 to her home near Low Moor. Defendant, however, lived at the Corners and offered no reasonable explanation of his conduct preceding the collision. A fair inference is that defendant backed out of the Kunau lane and headed north when he saw Letha leave the Corners.

When the Oberman car was about one-fifth mile south of No. 30 on its right (west) side of highway 291, moving south at moderate speed, the Hill car (without lights) came toward it from the south in the middle of the road. When it was about 20 feet in front of the Oberman care, the Hill car swung or swerved over in front of it and caused the collision. This is the testimony of the boy who sat in the front seat with Letha.

Further reference to the evidence is unnecessary. We think it clear the jury could properly find defendant drove 'in such manner as to indicate either a willful or a wanton disregard for the safety of persons or property' in violation of Code section 321.283.

It was not necessary for the jury to find defendant intended to harm the occupants of the Oberman car. Reckless driving is not an intentional wrong in the sense that resulting harm is intended. The statute is violated by conscious and intentional driving which the driver knows, or should know, creates an unreasonable risk of harm to others. Restatement, Torts, section 500; State v. Bolsinger, 221 Minn. 154, 21 N.W.2d 480, 484, 491, and citations, construing a statute identical to ours.

Our conclusion as to the sufficiency of the evidence finds support in Hill v. State, 27 Ala.App. 202, 169 So. 21; State v. Mickle, 194 N.C. 808, 140 S.E. 150; State v. Lyon, 59 N.D. 374, 230 N.W. 1.

State v. Jacobsmeier, 229 Iowa 878, 294 N.W. 920, cited by defendant, seems to be the only prosecution under what is now section 321.283 to have reached this court. The facts in that case are not analogous. They disclosed only momentary inattention and negligence, not willful or wanton disregard for the safety of others.

II. Defendant complains of the admission of evidence that without lights he circled the Oberman car while it was parked at the Corners. Some of this testimony, particularly that of David Thompson who alighted from the Oberman car at the Corners, was received without objection. Indeed the record seems to indicate a deliberate purpose of defendant's counsel not to object to the two principal questions put to this witness on this subject. Counsel started to object to one of the questions and then announced the objection was withdrawn. It is obvious defendant is in no position to complain of such evidence.

Aside from the above, the testimony referred to was properly received. Defendant's contention it was inadmissible because, it is said, there was no substantial evidence of reckless driving at the time of the collision is disposed of by Division I hereof. His claimt he testimony was too remote to be admissible is equally without merit. The Corners are less than one-fourth mile from the place of collision. Circling the Oberman car preceded the accident by only five to eight minutes.

Defendant's driving was traced from the occurrence at the Corners until the collision. The jury could find he deliberately drove without lights all that time except when turning around in the gravel road north of the Corners. Testimony his lights were off when he was at the Corners corroborates evidence he was without lights when the collision occurred. Further, the happening at the Corners was part of a course of conduct which continued until the collision. It was part of a continuing offense. Such testimony tends to explain defendant's acts and purposes when the collision occurred and to rebut the claim now made that the Hill car might have accidentally skidded into the Oberman car.

This evidence was admissible under the familiar rule that where acts are so closely related in point of time and place and so intimately associated with each other that they form a continuous transaction, the whole transaction may be shown for the purpose of showing the scienter or quo animo of the party charged. State v. Robinson, 170 Iowa 267, 276, 152 N.W. 590; State v. Hickman, 195 Iowa 765, 772, 193 N.W. 21; State v. Rounds, 216 Iowa 131, 133, 134, 248 N.W. 500. See also 22 C.J.S., Criminal Law, § 689, and, as further supporting our conclusion, State v. Nuzum, 58 S.D. 6, 234 N.W. 665, 667; Sims v. State, 149 Miss. 171, 115 So. 217, 219.

Defendant relies on Neyens v. Gehl, 235 Iowa 115, 125, 15 N.W.2d 888, 892; Thomas v. Charter, 224 Iowa 1278, 1281, 278 N.W. 920, 922, and Glass v. Hutchinson Ice Cream Co., 214 Iowa 825, 829, 243 N.W. 352, all civil cases which hold there was no abuse of discretion in the rejection of evidence of speed at a place remote from the scene of the accident where it was not shown such speed had some connection with the speed at the point of collision. In Neyens v. Gehl, supra, the testimony was rendered inadmissible by a showing that defendant slowed down twice between the time inquired about and the collision. There is nothing in these decisions inconsistent with our conclusion here.

III. It is argued the court's instructions 10 and 11 erroneously call attenton to evidence favorable to the state without reciting facts favorable to defendant.

As defendant asserts, the practice of setting out in an instruction testimoney on which one party relies is not to be commended because it tends to give undue prominence thereto. Where an instruction does set out evidence on some question that is favorable to one party it is error not to set out testimony on such question which is unfavorable to that party. State v. Dunne, 234 Iowa 1185, 1194, 1195, 15 N.W.2d 296, 301, and citations; Hayungs v. Falk, 238 Iowa 285, 27 N.W.2d 15, 19. See also State v. Williams, 238 Iowa 838, 28 N.W.2d 514, 518, 519, and citations; 23 C.J.S., Criminal Law, § 1308; 53 Am.Jur., Trial, sections 566, 567.

Instruction 10, without undue emphasis, calls attention to evidence 'all of which has been denied by defendant,' that he drove without lights and on the wrong side...