State v. Kendall

• Decision Date: 12 May 1925
• Docket Number: No. 36248.,36248.
• Parties: STATE v. KENDALL.
• Court: Iowa Supreme Court

200 Iowa 483

203 N.W. 806

STATE

v.KENDALL.

No. 36248.

Supreme Court of Iowa.

May 12, 1925.

Appeal from District Court, Pottawattamie County; Earl Peters, Judge.

Defendant was convicted of the crime of operating a motor vehicle while intoxicated. After trial, judgment was entered against defendant sentencing him to the penitentiary for a period of one year. From this judgment he appeals. Modified and affirmed.Robertson & Robertson, of Council Bluffs, for appellant.

Ben J. Gibson, Atty. Gen., and Neill Garrett, Asst. Atty. Gen., for the State.

ALBERT, J.

On the 4th day of January, 1924, an indictment was returned against the defendant charging him with the crime of operating a motor vehicle while intoxicated. On this appeal appellant assigns some 41 errors. For convenience we will condense as many of the errors as possible relating to the same questions affecting the testimony offered by various witnesses.

[1] The first question discussed is a ruling made by the court excusing one of the jurors under the testimony given by him on his voir dire examination. The question as to the qualification of the jurors is usually a question of the sound discretion of the trial court. Unless abuse of such discretion is clearly shown, reversal cannot be had on this proposition. The record is entirely barren of any such showing of abuse of discretion by the court, and therefore the appellant cannot complain. State v. Butler, 155 Iowa, 204, 135 N. W. 628;State v. Smith, 124 Iowa, 334, 100 N. W. 40;State v. Teale, 154 Iowa, 677, 135 N. W. 408;State v. Brown, 130 Iowa, 57, 106 N. W. 379;State v. Crofford, 121 Iowa, 395, 96 N. W. 889.

The weight of authority seems to be that it is not reversible error to exclude a juror for an insufficient cause if an impartial and unobjectionable jury is afterward obtained. Keady v. People, 32 Colo. 57, 74 P. 892, 66 L. R. A. 353;State v. Rodriquez, 23 N. M. 156, 167 P. 426, L. R. A. 1918A, 1016;Pittsburgh, etc., Ry. Co. v. Montgomery, 152 Ind. 1, 49 N. E. 582, 69 L. R. A. 875, 71 Am. St. Rep. 301;State v. Kennedy, 133 La. 945, 63 So. 476;Bluthenthal v. May Advt. Co., 127 Md. 277, 96 A. 434.

[2] There is a material distinction between an error in retaining a disqualified juror, and rejecting one who is qualified, and the latter is not material if it did not prevent a trial by a fair and impartial jury. State v. Marshall, 8 Ala. 302.

[3][4] Under the juror's examination in this case we hold that the court did not abuse its discretion in excusing the juror. Complaint is made because objection was made to the counsel for defendant attempting to state certain matters in his opening statement. Primarily, an opening statement to the jury by the attorney for either side should be devoted to statement of the facts and conclusions to be drawn from such facts, and not an attempt to run a school of instruction as to the law of the case. The objection raised here, however, is not tenable, but arose under these conditions. Counsel for defendant was making his opening statement to the jury, and was interrupted by the prosecuting attorney with the remark:

“I think that is scarcely a statement of fact; I think it is an argument.

“The Court: It is getting pretty close to the line of argument. You may have an opportunity to argue the case at the close of the evidence.” (The defendant excepts.)

This is the record before us. It is apparent therefrom that the objection, if it may be so considered, by the county attorney, was not sustained; but if we consider the objection as sustained by the court, it is not prejudicial error. 16 C. J. 891.

[5] Numerous witnesses were asked whether the defendant was intoxicated or in an intoxicated condition, or whether, in the opinion of the witness, the defendant was intoxicated. Defendant made timely objection to this line of testimony, but was overruled, and he now assigns error thereon. This question has been too long settled in this state to demand more than a citation of authority. See State v. Huxford, 47 Iowa, 16;Ewing v. Hatcher, 175 Iowa, 443, 154 N. W. 869, and cases therein cited.

[6][7][8] Objection is also made to the range allowed on cross-examination of defendant's witnesses, but this is also a matter of discretion with the trial court. State v. Madden, 170 Iowa, 230, 148 N. W. 995;State v. McKinnon, 158 Iowa, 619, 138 N. W. 523. It is also true that on redirect examination questions are permissible which explain the matters brought out on cross-examination. State v. Rohn, 140 Iowa, 640, 119 N. W. 88. It is also urged that there was misconduct of the county attorney in his argument to the jury in which the prosecuting attorney attempted to discuss the question of the penalty accompanying the crime charged. Objectionwas made to this, and the court, in passing on the same, held that what was being said by the county attorney was proper argument and replied to what had already been said by defendant's counsel in his argument to the jury. It thus appearing in the record that the argument advanced by the county attorney was responsive to the argument already made by the defendant's counsel, the defendant is not in a position to complain. As said by the court, the matters for argument on both sides were the facts involved in the case, and the jury was not interested in the penalty provided by the law. The defendant's attorney first infracted the rule, and he cannot now raise the question.

We have said that it is proper for the county attorney to answer the argument made by the defendant's counsel, and although the question under discussion was an improper one, yet, under such circumstances, it is not ground for reversal. State v. Crayton, 138 Iowa, 502, 116 N. W. 597;State v. Hart, 140 Iowa, 456, 118 N. W. 784;State v. Wegener, 180 Iowa, 102, 162 N. W. 1040.

To the point that it is not proper for the defendant's counsel to tell the jury what the penalty on conviction will be, see State v. Towne, 180 Iowa, 339, 160 N. W. 10.

[9][10] Appellant further complains that his theory of the case was not covered by the instructions of the court. The court, on its own motion, gave certain instructions herein, which fairly cover the case. If the defendant had wished his theory of the case instructed upon, he should have requested such instructions, as would cover his theory. The court, having covered all the elements of the case, did all it was required to do, and his failure to instruct on defendant's theory when not requested by defendant so to do is not reversible error. State v. Pelser, 182 Iowa, 1, 163 N. W. 600;State v. Brandenberger, 151 Iowa, 205, 130 N. W. 1065;State v. Jones, 145 Iowa, 176, 123 N. W. 960.

Certain instructions were given by the court defining “intoxication,” to which objection is made; but they fairly come within the definition of “intoxication” as set out in Iowa cases, among others State v. Baughn, 162 Iowa, 310, 143 N. W. 1100, 50 L. R. A. (N. S.) 912.

[11][12] Objection is also made to the testimony of the witness Pratt, in testifying that the automobile was traveling at approximately 25 miles an hour. Under the facts involved in the case, speed of the automobile is wholly immaterial, and had nothing whatever to do with the crime charged. While the court should require a witness to be qualified before permitting him to so testify, in the instant case it was error without prejudice.

[13] Numerous questions were asked of various witnesses relative to the appearance and conduct of the defendant at the time in...