State v. McKenzie
| Decision Date | 15 November 1927 |
| Docket Number | No. 38804.,38804. |
| Citation | 204 Iowa 833,216 N.W. 29 |
| Parties | STATE v. MCKENZIE. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Washington County; Chas. A. Dewey, Judge.
Defendant was indicted for operating an automobile upon a public highway while in an intoxicated condition. From a verdict of conviction, and sentence thereon, defendant appeals. Reversed.Eardley Bell, Jr., of Wellman, and Edmund D. Morrison, of Washington, Iowa, for appellant.
John Fletcher, Atty. Gen., Neill Garrett, Asst. Atty. Gen., and A. E. Baldrige, Co. Atty., of Washington, Iowa, for the State.
At the close of the state's case, the defendant made a motion for a directed verdict on the ground of insufficiency of testimony to carry the case to the jury, and this motion was renewed at the end of all the testimony. The overruling of this motion, and a motion for a new trial based on the same grounds, is the only question raised in the case.
[1] Summarized, the defendant's contention is: First, that there was insufficient testimony to take the case to the jury; and, second, that the verdict is clearly against the weight of the testimony. The Code (section 13944, Code 1924) provides grounds for a new trial, among which are: “(6) When the verdict is contrary to law or evidence.” Under this section we have announced the following rule: Where the verdict is clearly against the weight of evidence, a new trial should be granted. State v. Reinheimer, 109 Iowa, 624, 80 N. W. 669;State v. Sullivan, 156 Iowa, 603, 137 N. W. 918;State v. Saling, 177 Iowa, 552, 159 N. W. 255;State v. Carson, 185 Iowa, 568, 170 N. W. 781.
[2] This court will interfere more readily with a verdict, because contrary to the weight of evidence, in a criminal case than in a civil case. State v. Reinheimer, supra; State v. Tomlinson, 11 Iowa, 401;State v. Wise, 83 Iowa, 596, 50 N. W. 59;State v. Beasley, 84 Iowa, 83, 50 N. W. 570;State v. Pilkington, 92 Iowa, 92, 60 N. W. 502. We have further said in civil cases that, where a verdict is clearly against manifest justice and contrary to the evidence in the case, it is the duty of the trial court to unhesitatingly set it aside. Fawcett v. Woods, 5 Iowa, 400;Smith v. Williams, 23 Iowa, 28;Scott v. Morse, 54 Iowa, 732, 6 N. W. 68, 7 N. W. 15;Baldwin v. St. Louis, Keokuk & N. W. Ry. Co., 63 Iowa, 210, 18 N. W. 884. To meet the above pronouncement the appellee cites State v. Kendall, 200 Iowa, 483, 203 N. W. 806;State v. Giles, 200 Iowa, 1232, 206 N. W. 133, 42 A. L. R. 1496. In the Kendall Case the state introduced direct testimony from various witnesses as to the demeanor and conduct of the defendant, and these witnesses also testified that in their opinion the defendant was intoxicated. This exact condition existed in the Giles Case, above cited. In both cases we said that the question of the condition of the defendant was a disputed question for the jury, and the court would not interfere.
[3] Turning, now, to the instant case, we find the following condition of the record:
One Walter Lemley was night marshal of the town of Kalona, and on October 10, 1926, after the supper hour, and while on his beat, he found one Anthony Chapek on the streets in an intoxicated condition. He met the defendant, Charles McKenzie, a resident of the town, and told McKenzie that Chapek was intoxicated and liable to get into trouble, and he wished that McKenzie would take Chapek to his home, which was in the town of Richmond, about three miles from Kalona. Pursuant to this conversation, McKenzie got his automobile and, taking Chapek with him, they started for Richmond. It was a dark and foggy night, and about 9 p. m. It appears that the road on which they were traveling in a southerly direction had piles of gravel along the east side thereof, placed there for the purpose of being spread on the road. The evidence shows that on the right side of the road, as McKenzie was driving south, there was a deep ditch. After they had driven on this road for about half a mile, they met one Kern coming from the opposite direction, and there was a collision between the cars. The road was necessarily narrowed by reason of the gravel piled on the east side thereof. The cars approached each other very slowly, and McKenzie says that the lights of the Kern car so blinded him that he was unable to determine its exact location.
After the collision, the Kern car was able to proceed to Kalona on its own power. The McKenzie car was so badly injured that it was abandoned, and McKenzie and Chapek started to walk back to Kalona, but were picked up by another car. When they got back to town, Chapek and McKenzie went to the hotel, where McKenzie had a room. About an hour after the accident, the night marshal, Kern, and M. E. Cain, mayor of the town, went to McKenzie's room, and the question of payment to Kern for damages...
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