State v. Salmer

• Decision Date: 18 October 1917
• Docket Number: No. 31684.,31684.
• Citation: 164 N.W. 620,181 Iowa 280
• Parties: STATE v. SALMER.
• Court: Iowa Supreme Court

181 Iowa 280

164 N.W. 620

STATE

v.SALMER.

No. 31684.

Supreme Court of Iowa.

Oct. 18, 1917.

Appeal from District Court, Woodbury County; George Jepson, Judge.

Defendant was indicted on the charge of manslaughter, tried, convicted, and appeals. Reversed.Henderson, Fribourg & Hatfield, of Sioux City, for appellant.

H. M. Havner, Atty. Gen., for the State.

O. T. Naglestad, J. W. Kindig, and D. G. Mullan, all of Sioux City, for Woodbury County.

GAYNOR, C. J.

The defendant, having been indicted, tried, and convicted on the charge of manslaughter, appeals to this court, and alleges: (1) That the evidence upon which he was convicted was wholly insufficient to sustain the charge against him; that the verdict is against the clear weight of the evidence; that the evidence was not sufficient to establish the guilt of the defendant of the charge made against him beyond a reasonable doubt. (2) That the jury, while deliberating upon their verdict, was guilty of gross misconduct.

It was charged in the indictment that, on or about the 31st day of October, 1915, the defendant, while riding in an automobile operated by himself on the streets of Sioux City, unlawfully and feloniously ran into and over one Vernon Frost, so injuring and wounding him that death ensued as the proximate result thereof; that the defendant at the time was running his automobile in a grossly negligent and reckless manner, and at an excessive rate of speed.

Upon the trial, the state sought to show, not only that the defendant was operating the automobile in a grossly reckless and negligent manner, but that he was intoxicated at the time. There was evidence introduced on the part of the state to sustain this contention. Evidence was also introduced that the defendant neglected to give any warning of his approach and that his front lights were not lighted. One witness, who was on the scene of the accident immediately after its occurrence, testified:

“Defendant was drinking that night. I won't say that I smelt intoxicating liquor, because I was not close enough to him. After the accident the defendant drove the automobile to the hospital with the boy in it.”

Another witness testified:

“Defendant was drinking to my notion. I smelled intoxicating liquor on him. The car was going between 20 and 30 miles an hour. I was 10 or 15 feet east of the boy when the automobile struck him.”

The policeman who arrested the defendant testified that defendant was intoxicated when he came to the station about 10 minutes of 9 that night. He seemed to be able to walk upright and all right. He came to the station in his own car. He was arrested at between 7 and 7:30. The accident occurred about 6 o'clock.

There was a sharp conflict in the evidence as to the speed at which the defendant was driving that night, and as to whether the lights were lit. Under the evidence it was an open question for the jury as to whether the defendant was under the influence of liquor immediately before and at the time of the accident, and a finding either way would have some support in the evidence.

Upon the first error assigned we express no opinion. The evidence is conflicting, and defendant is entitled to the verdict of an unbiased jury, one that can and will base its finding upon the evidence produced and submitted to them on the trial, and upon nothing else.

There was no motion for a directed verdict; nor was the attention of the court challenged to the sufficiency of the evidence to justify a verdict before the cause was submitted. It was suggested for the first time in the motion for a new trial. Since a new trial is to be granted on another ground, we express no opinion as to the sufficiency of the evidence. We refer to the evidence above for the purpose only of indicating that there was a conflict in the evidence touching the condition of the defendant as to being intoxicated or not at the time of the accident. This question is involved in the second assignment of error upon which a new trial was asked.

[1][2] It is a matter of common knowledge that the conduct of men is greatly influenced by the condition they are in at the time they are called upon to act; that men under the influence of liquor do not possess the same cool judgment and discretion that men possess when not under its influence. When one is charged with careless, reckless conduct, or with conduct indifferent to the rights of others, a showing that he was intoxicated at the time is a very persuasive factor in leading the mind to the conclusion that the charge is well founded. Much, of course, depends upon the stage at which the party has arrived at the time. Grossly intoxicated men have scarcely any judgment and discretion, and as a rule little regard for the rights of other people. The same evidence that would fail to convince the mind that a sober man, a man in his sober senses, did a specific act involving a reckless disregard of the rights of others, might readily be assumed to be true in the case of one who is grossly intoxicated, or operating under the influence of liquor. The condition of the defendant as to intoxication was a matter of great probative force upon the ultimate question to be solved by the jury.

It is claimed by the state that without sufficient light, on a public street, in the night-time, defendant was driving his car 30 miles an hour, and this without sounding his horn, or without giving any warning of his approach; that the boy was in a position to be seen by him at the time, if he had been looking; that he was not looking; that he was taking no precautions for the safety of the public; that in fact he was grossly negligent and reckless in his conduct. To emphasize this, and make it more certain to the mind of the jury, the state sought to show that the defendant was at the time intoxicated. Every fact upon which the state predicates its right to a verdict was controverted by the defendant. Between the conflicting evidence, the jury was called upon to determine the ultimate fact. After the jury retired to consider on their verdict, the record discloses that the following took place in the jury room and before any verdict was arrived at:

The foreman of the jury, Beck, stated, in substance, that he knew defendant's father had a good deal of trouble with the defendant; that he was a wild boy, had been...