State v. Myers

• Citation: 207 Iowa 555,223 N.W. 166
• Decision Date: 23 January 1929
• Docket Number: No. 39133.,39133.
• Parties: STATE v. MYERS.
• Court: United States State Supreme Court of Iowa

207 Iowa 555

223 N.W. 166

STATE

v.MYERS.

No. 39133.

Supreme Court of Iowa.

Jan. 23, 1929.

Appeal from District Court, Jefferson County; Geo. W. Dashiell, Judge.

Defendant was found guilty of operating a motor vehicle while intoxicated, and appeals. Reversed.Ralph H. Munro, of Fairfield, for appellant.

John Fletcher, Atty. Gen., and Neill Garrett, Asst. Atty. Gen., for the State.

MORLING, J.

[1][2][3][4] Defendant contends that the state's witness, Glotfelty, who testified to the alleged commission of the crime, was an accomplice, and that the court should have charged the jury that a conviction could not be had upon his testimony unless corroborated. There was no instruction upon the subject. Glotfelty was the owner of the car, and was riding in it while defendant was driving at the time to which the indictment relates. According to Glotfelty's testimony, both were drinking before and while they were riding in the car. Their common mission in driving the car at the time was to procure and drink liquor. They had a conversation as to which one was in the best condition to drive. Glotfelty testifies that defendant “said he was.” “Whoever while in an intoxicated condition operates a motor vehicle shall upon conviction be sentenced. * * *” Code 1927, § 5027. It is the operation of the motor vehicle in an intoxicated condition that constitutes the offense. The state argues that such operation “is one purely personal to the person charged therewith. * * * It is a crime the nature of which is individual and is such that there could be no accomplice thereto.” Section 12895, Code 1927, reads, “The distinction between an accessory before the fact and a principal is abrogated and all persons concerned in the commission of a public offense, whether they directly commit the act constituting the offense, or aid and abet its commission, though not present, must hereafter be indicted, tried, and punished as principals.” Even though only one person can be engaged in the physical operation of a motor vehicle at one time and even though another may be incompetent in person to commit the crime, it is plain that such other, though not engaged in such physical act, may have caused or aided in the operation by a drunken person and hence liable to indictment therefor. State v. Comstock, 46 Iowa, 265;State v. Rowe, 104 Iowa, 323, 73 N. W. 833; “The general rule for determining whether a witness is an accomplice or not is to determine whether he could have been indicted and convicted of the same crime.” State v. Brundage, 200 Iowa, 1394, 206 N. W. 607. We have no doubt that Glotfelty on his own...