State v. Jurgenson, 57094
| Decision Date | 22 January 1975 |
| Docket Number | No. 57094,57094 |
| Citation | 225 N.W.2d 310 |
| Parties | STATE of Iowa, Appellee, v. John H. JURGENSON, Appellant. |
| Court | Iowa Supreme Court |
Thomas M. Kelly, Jr., Davenport, for appellant.
Richard C. Turner, Atty. Gen., David M. Dryer, Asst. Atty. Gen., and Edward N. Wehr, Scott County Atty., Realff H. Ottesen, Asst. County Atty., for appellee.
Submitted to MOORE, C.J., and MASON, additional contribution toward their college education should not have been required
Defendant, John H. Jurgenson (Jorgensen in the clerk's transcript and notice of appeal) appeals conviction for drag racing in violation of Code section 321.284. He was tried to the court, found guilty and fined $100. We affirm.
Leon F. Washington, a Davenport police officer testified that while on patrol with his partner on the evening of January 4, 1973, he observed two automobiles, a Chevelle and a Plymouth, racing north on Sturdevant Street. He stated he heard the loud squeal of tires and that both vehicles were accelerating and traveling at a speed in excess of the lawful limit. He turned on upon him in its decree dissolving his Plymouth turned left at Rockingham Road and proceeded in a westerly direction. The officers caught up with the Chevelle and arrested the driver, Michael Thomas.
Officer Washington testified he asked Thomas who the driver of the other car was, and, over defendant's hearsay objection, testified Thomas said it was defendant. Washington then searched for the Plymouth and found it outside a tavern. He found defendant inside the tavern and arrested him for drag racing. On cross-examination Washington stated he could not identify defendant from the view he had while in pursuit.
At the close of the State's case in chief defendant's motion to dismiss the charge contending the officer's identification was based on hearsay and the State had failed to prove that essential element of the offense charged, was overruled.
Defendant took the stand in his own defense and testified on the evening in question he and Michael Thomas left work in separate cars and, while traveling on Sturdevant Street, he passed Thomas on the left said of the street. Defendant denied he was speeding. At the close of all the evidence defendant renewed his motion to dismiss, which was overruled.
Defendant seeks reversal on two related grounds. First, he contends trial court erred in admitting, over his hearsay objection, testimony of Officer Washington that Michael Thomas identified defendant as driver of the Plymouth. Secondly, he asserts the trial court erred in overruling his motion to dismiss made at the close of the State's case and renewed at close of all evidence, claiming the State failed to prove he was the operator of the Plymouth.
I. The propriety of the trial court's ruling on defendant's hearsay objection, which ruling was based on the State's assertion the res gestae exception applied, need not be resolved.
The only matter objected to in Washington's alleged hearsay testimony was defendant's identity as the operator of the Plymouth. This was the State's only evidence establishing this essential element of the crime charged. Assuming arguendo the testimony was hearsay and was not properly admissible under the claimed exception, then obviously the trial court erred in overruling defendant's objection. Where error appears prejudice is assumed unless the contrary is affirmatively established. State v. Mattingly, Iowa, 220 N.W.2d 865, 869, and citations.
However, error in the admission of evidence is not prejudicial where substantially the same evidence is in the record without objection. State v. McCollom, 260 Iowa 977, 983, 151 N.W.2d 519, 522; State v. Estrella, 257 Iowa 462, 468, 133 N.W.2d 97, 101, ('We are not convinced the order of the testimony makes any great difference when the substance of the hearsay testimony is substantially the same as that properly presented in the trial court by a competent witness.'); Mathews v. Beyer, 254 Iowa 52, 61, 116 N.W.2d 477, 482.
'The erroneous admission of evidence that may be justification for reversal is neutralized and cured when the opposite party subsequently admits the fact erroneously proved or shows it by his own evidence.' 5 Am.Jur.2d, Appeal and Error, section 806, page 248. See also, 5A C.J.S. Appeal and Error § 1724.
When defendant took the stand and identified himself as the driver of the car passing the Chevelle driven by Thomas, any error which may have resulted from admission of Officer Washington's testimony identifying defendant was rendered non-prejudicial.
II. Turning to defendant's claim trial court erred in overruling...
To continue reading
Request your trial
-
State v. Jacoby, 59756
...of evidence is not prejudicial error where substantially the same evidence is in the record without objection. State v. Jurgenson, 225 N.W.2d 310, 312-313 (Iowa 1975). We find no ground for reversal in this IV. Was defendant denied due process by release of jurors' identities? Defendant ass......
-
State v. Trudo, 59279
...("Ordinarily admission of evidence is not prejudicial when the evidence is of matters conceded by the defendant"); State v. Jurgenson, 225 N.W.2d 310, 312 (Iowa 1975) ("(E)rror in the admission of evidence is not prejudicial where substantially the same evidence is in the record without obj......
-
State v. Gilmore
...for reversal is not prejudicial where substantially the same evidence is in the record without objection. See State v. Jurgenson, 225 N.W.2d 310, 312 (Iowa 1975), and authorities With the foregoing rule in mind we turn to the facts narrated earlier in this opinion and to those appearing in ......
-
State v. Welsh, 58655
...appropriately directed to the court in a non-jury trial. We will consider it as a motion for directed verdict. See State v. Jurgenson, 225 N.W.2d 310, 312 (Iowa 1975); Henschel v. Hawkeye-Security Insurance Company, 178 N.W.2d 409, 414 (Iowa 1970); cf. State v. Deets, 195 N.W.2d 118 123--12......