State v. Miskell, 48725

Citation73 N.W.2d 36,247 Iowa 678
Decision Date15 November 1955
Docket NumberNo. 48725,48725
PartiesThe STATE of Iowa, Appellee, v. Bility Joe MISKELL, Appellant.
CourtUnited States State Supreme Court of Iowa

Smedal & Maurer and Milton D. Seiser, Ames, for appellant.

D. W. Countryman, Atty. Gen., of Iowa, Raphael R. R. Dvorak, George G. West, Asst. Attys. Gen., and D. L. Nelson, County Atty. of Story County, Ames, for appellee.

BLISS, Justice.

The information charged the accused with the crime of reckless driving 'will liquor involved' for that on November 23, 1954, he 'did unlawfully, wilfully operate his motor vehicle in a reckless manner with liquor involved * * * contrary to Section 321.283 of the 1950 Code of Iowa.' (Italics ours.) On motion of defendant the italicized words were stricken by the Court.

The crime with which defendant is charged is found in Sect. 321.283 of the Code of Iowa 1950, I.C.A., to wit: 'Reckless driving. Any person who drives any vehicle in such manner as to indicate either a wilfull or a wanton disregard for the safety of persons or property is guilty of reckless driving.'

On the date stated, at about noon, as a prospective buyer, defendant was permitted by an automobile dealer in McCallsburg, Iowa, to take a used car that had been reconditioned, for a test drive of an hour or so. Later that afternoon Mrs. Roy Van Zee, a farmer's wife living a short distance east of McCallsburg, was proceeding eastward on an east-west road in her car with her two children for a four o'clock dental appointment in the town of Zearing, Iowa. The highway was a graveled two-lane road. She was traveling at a speed which she estimated as about fifty miles an hour. She had been driving a car for about nineteen years. When she was about 250 or 300 feet from a north-south intersecting road she observed a car about to pass her although she had heard no horn. This car passed her and cut into her lane about five or ten feet in front of her car, 'and the wheels of the car were off the ground.' She was startled. She estimated the passing car was exceeding the speed of her car by fifteen miles an hour, and when it was about 100 feet in front of her it started to roll over. Mrs. Van Zee testified that the car rolled over three times. The first being before it reached the intersection. When the car reached the south side of the road, the driver evidently cramped his wheels, and it turned sideways and started to turn over. It hit a highway sign. There was loose, moist gravel on the north side of the road but the witness did not recall the condition of the south side of the road. She saw no holes or depression in the road nor in the intersection, and said the road was not a washboardy graveled road, but just an ordinary graveled road, and safe to travel over at a speed of fifty miles an hour. She testified that as the car started to roll over 'its doors started flying open and several beer cans fell out and a gun.' She put on her brakes but not hard enough to slide the wheels. The passing car came to rest on the south side of the road on the east side of the intersection. She stopped her car and walked up to the other car, which was about 100 or 150 feet east of the intersection. She saw the cans of beer along the road and about the car. The driver of the car was still in his car but she didn't speak to him. Mrs. Van Zee was a witness for the State.

Mert Coover, the car dealer was a witness for the State. He testified that: the defendant came into his place of business about 12:15 P.M. on the 23rd of November, 1953, and asked him if he could take out a 1951 Super 88 Oldsmobile to show it to someone who might help him purchase it. The witness told him to have it back by 1 o'clock that afternoon. It was then in good mechanical condition with the exception of the generator. He never brought it back and when it was towed in it was completely demolished.

A Mr. Goodmanson, a witness for the State, of Roland, Iowa, a trucker for the Marshall Canning Co., about four o'clock in the afternoon of November 23rd, was driving an empty truck west on the gravel road between McCallsburg and Zearing. When he was about eighty rods east of the intersection, we have referred to, he 'counted a car being up in the air about three times.' He did not see it before it started to turn over, but he saw the dust that it made. He stopped to give assistance and found Miskell in the car unconscious. The car was on the south shoulder of the road. There was some loose gravel and also a bump in the road at that point. He said it was never a good road until they later fixed it. It was his judgment that the skid marks started east of the intersection. The car went end over end three times and landed on all four wheels. It was badly demolished. He saw four or five cans of beer and picked them up and threw them in the ditch. He did not see any skid marks across the intersection. The car turned over three times east of the intersection on the south side of the road. He stated that the car first started to turn over east of the intersection. There was loose gravel on the sides of the road. He located the place where the car first started to turn over by a dent in the road. There were washboard bumps in the intersection. 'The road was maintained and it was not a hazardous road.'

Dale Allen, an automobile mechanic, who had worked for Mr. Coover, the auto dealer, since 1946, as a witness for the State, testified he was familiar with the mechanical condition of the Oldsmobile which the defendant drove on November 23, 1953. He had repaired it and road-tested it, the second time being just the morning before defendant took it out and the car was in good condition except for the generator. The steering apparatus and brakes were in good condition at the time Miskell drove it.

Dr. Hall, an osteopathic physician at Zearing, testifying for the State, said that he was called to the scene of the Miskell accident, and gave him a preliminary physical examination, and he saw him later in the hospital. He testified to the location of the accident, but gave no other testimony.

William Severin, a Highway Patrolman, whose district included Story County, was a witness for the State. He investigated the accident about 4:10 P.M., after the defendant had been taken to the hospital. He testified the he first observed the tire marks of Miskell's car 300 feet west of the intersection in some gravel that had been piled on the north side of the road. He followed these tire marks and the marks of the car where it rolled over--leaving green paint marks on the gravel--to where the car was standing approximately 265 feet east of the intersection. A road sign post was broken off on the south side of the road. The witness saw the defendant at the hospital that evening and asked him for his driver's license, and how fast he was going, and 'he (Miskell) said he was going about 35 to 40 miles per hour.'

At the close of the State's evidence, defendant made the following motions to strike: 1. all words concerning liquor in the Information; 2. to eliminate all such words from any charge to the jury, and to instruct the jury to totally disregard the same; 3. to strike from the testimony of Mrs. Van Zee what she stated about seeing beer cans fly out of the defendant's car; 4. all testimony of Goodmanson about seeing and picking up beer cans on the highway or in the ditch; 5. to strike from the testimony of Severin, the Highway Patrolman, all statements of his conversation with defendant at the hospital, as being violative of Code sections 321.266 et seq. and 321.271, I.C.A.; and 6. to direct a verdict for defendant because of insufficient evidence to sustain the charge in the information.

The court sustained motions 1, 2, and 4, and overruled motion 3, since the testimony of Mrs. Van Zee that she saw beer cans flying from the car was material as bearing upon the manner in which the car was being driven. The court also overruled motion 5 for the stated reason that in the opinion of the Court Code section 321.271, I.C.A. does not apply to criminal matters, and that State v. Williams, 238 Iowa 838, 848, 28 N.W.2d 514 involved only the question whether the prosecuting attorney had been guilty of misconduct. We do not determine that question, for in any event the officer's taking of defendant's driving license, and his question respecting defendant's speed and the latter's answer that it was 35 to 40 miles per hour were in nowise prejudicial to defendant. He later testified in his own behalf that the car was traveling fifty miles an hour. It is our conclusion that the Court rightly ruled on all the motions. There was no error in overruling motion 6 to direct a verdict for defendant. There was ample competent evidence to sustain the charge in the information.

A witness for defendant testified that after the car driven by defendant had been reconditioned, and on the Saturday before the accident, he took the car out to see how it would drive and when it exceeded forty miles an hour it seemed to weave or crawl from side to side of the road. Another witness testified that he was familiar with the highway running east out of McCallsburg to the Zearing corner, and had driven over it the day before the accident, and it was washboardy across the intersection and, while he did not see any chuck-hole at the intersection, he felt it as he passed over it in his truck. He said: 'The road is well maintained. I can't say what the condition of the road was at the time of the accident. The road was safe to travel.'

Testifying for himself, defendant told of getting the car at the Coover garage for a test drive, and after driving it about twelve miles, he drove it about two more miles east on the graveled road to the corner where the accident occurred. He said: there was gravel on both sides of the road and as he proceeded on the south side at a speed of about fifty miles an hour, he honked his horn and went around and ahead...

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