State v. Sampson

• Decision Date: 13 November 1956
• Docket Number: No. 48944,48944
• Citation: 248 Iowa 458,79 N.W.2d 210
• Parties: STATE of Iowa, Appellee, v. Duane A. SAMPSON, Appellant.
• Court: Iowa Supreme Court

Page 210

79 N.W.2d 210

248 Iowa 458

STATE of Iowa, Appellee, v. Duane A. SAMPSON, Appellant.

No. 48944.

Supreme Court of Iowa.

Nov. 13, 1956.

Rehearing Denied Feb. 8, 1957.

James A. Lorentzen and Raymond Rosenberg, Des Moines, for appellant.

Dayton Countryman, Atty. Gen., State of Iowa, George West, Asst. Atty. Gen., and

Bert A. Bandstra, County Atty., Knoxville, for appellee.

PETERSON, Justice.

Defendant was convicted of the crime of operating a motor vehicle while intoxicated, second offense, as defined in Section 321.281, Code of Iowa 1954, I.C.A. At about 5 P.M. on July 19, 1955, Russell Hasty was driving west on U. S. Highway 92. According to his testimony, a few miles west of Knoxville he saw an automobile approaching. It was the car of defendant. As defendant approached the Hasty car he suddenly turned from the southerly path of travel to the northerly path. Hasty thought he was driving into a farm driveway. In order to avoid him Hasty drove to the south driving pathway. Defendant then swerved into that pathway and a collision occurred. Both parties were severely injured and were taken to a hospital at Knoxville. Defendant lived at Winterset and under admission and statements made by him he had taken a drink of whiskey before he left home and later spent over an hour in a tavern where he drank four bottles of beer. The highway patrolman, doctor, and nurse attending him, all testified they smelled liquor on his breath. A blood test was taken and the result of the test was his blood contained 186 mgs. of alcohol per 100 cc of whole blood. The doctor testified in his opinion if the alcohol reaches 150 mgs. the person is definitely drunk. The highway patrolman filed information against him. The Grand Jury indicted him. Upon trial he was convicted. He filed a motion for new trial, which was overruled. He was fined $500, and has appealed.

Appellant argues three grounds as reversible error. 1. The court refused under cross-examination to permit the witness Hasty to testify he had a civil action for damages pending against defendant. 2. The trial court erred in failing to rule as a matter of law on the admissibility of blood test evidence. 3. The court erred in instruction No. 10, which has reference to the blood test.

I. On cross-examination of the witness Hasty, counsel for defendant asked: 'Q. Is it true that you have a $55,000 damage suit against Mr. Sampson?' The court sustained an objection by the county attorney that the question was incompetent, irrelevant, immaterial and improper cross-examination. He cautioned the jury not to pay any attention to the question. It would have been advisable and proper if the trial court had overruled the objection, and admitted the answer, as a matter of testing the credibility and possible undue interest of the witness in the case under trial. State v. Christy, 198 Iowa 1302, 201 N.W. 42; State v. Davis, 236 Iowa 740, 19 N.W.2d 655. However, the court has a wide discretion in ruling on the extent of cross-examination. State v. Davis, supra; State v. Thomas, 151 Iowa 572, 132 N.W. 51; State v. Sedig, 235 Iowa 609, 16 N.W.2d 247; State v. Johnson, 215 Iowa 483, 245 N.W. 728. In State v. Thomas, supra [151 Iowa 572, 132 N.W. 52], where appellant argued that undue limitation had been placed upon the cross-examination of a state witness we said: 'This matter is so largely within the discretion of the trial court that reversals are few because thereof. It must be shown, before error can be predicated upon such rulings, that they were arbitrary or unfair, and resulted in prejudice to defendant.' In State v. Johnson, supra [215 Iowa 483, 245 N.W. 730], we stated: 'We have often held that the permissible range of cross-examination of witnesses for the purpose of affecting their credibility in general rests in the sound discretion of the trial court.' Citations. The question is whether the court abused his discretion, and whether the exclusion of the evidence constituted error prejudicial to the defendant. Hasty was not an important witness as to defendant's intoxication. His testimony concerning intoxication was only incidental. It pertained to the fact that as he was approaching defendant's car, defendant first suddenly turned north into Hasty's lane and then suddenly turned back into the south lane, resulting in the wreck. Hasty did not file the information, nor was he a witness before the Grand Jury. The intoxication testimony consisted of defendant's own evidence and admissions, the testimony of the highway patrolman, doctor and nurse, and the blood test. With this volume of direct testimony distinct and apart from the testimony of Hasty, we hold defendant was not prejudiced by the action of the court in sustaining objection to the cross-examination.

Appellant cites three Iowa cases in support of this allegation of error. They can all be distinguished from this case. The case of Lang v. Marshalltown Light, Power & Railway Company, 185 Iowa 940, 170 N.W. 463, 465, is a personal injury action by Mrs. Lang. Her husband was a witness on her behalf. Under cross-examination he was asked whether he had a suit pending for the same injuries to his wife. Objection to the question was sustained. Concerning the question we said: 'We think that, even though it was not cross-examination, it is proper to show the interest of a witness, as bearing upon his credibility. We should have been better satisfied had the court permitted an answer to this question; but under the record we are of the opinion that it was without prejudice, and that we should not be justified in reversing the case on this alone.' The second case cited is Bond v. Lotz, 214 Iowa 683, 243 N.W. 586, 587. Plaintiff called as witnesses Mr. and Mrs. Grover. Under cross-examination they were asked about a slander suit which Mr. Grover had pending against Mrs. Lotz, the defendant. Objections to the question were sustained, and we held this was error. However, the principal reason for reversal of the case was the wording of an instruction and the fact that the court permitted the jury to take into consideration repetition of a charge of slander which was not in the petition. Considering the decision as a whole it is evident that the ruling as to cross-examination was a minor matter. The third case cited is State v. Rowe, 238 Iowa 237, 26 N.W.2d 422. Appellant sought to show by cross-examination that the arresting officer and the Justice of the Peace held a feeling of ill will and hostility toward appellant. Under objection this testimony was excluded. We held it should have been admitted. However, here again there were several errors with reference to instructions and, in fact, on the merits of the case the court held the arrest of defendant was illegal. Again the matter of ruling as to cross-examination sinks into the background. It could properly be said in these two cases, as we said in the Lang case, 'we should not be justified in reversing the case on this alone.'

II. The question of method of admission of the blood test evidence was raised and argued by appellant. He contends the court shall pass, as a matter of law, on whether or not defendant gave consent to the test, and whether or not the condition of defendant was such that his consent was voluntary. It is true the doctor had administered 1/4 grain of morphine, but one doctor testified this would not affect the alcoholic content in the blood nor the capacity of defendant to understand the significance of the request for blood test. The doctor, nurse, and highway patrolman all testified he had voluntarily given his consent. The trial court overruled objections to admission of the testimony stating he would submit the question to the jury. We have only passed on this question in one other case. State v. Koenig, 240 Iowa 592, 36 N.W.2d 765, 766. We said: 'Defendant contends the court erred in receiving and refusing to strike the evidence of Dr. Hook concerning the taking of the blood sample. One complaint is that defendant was then unconscious. There was considerable evidence he was conscious and made no objection. The court submitted to the jury the question whether defendant was conscious and voluntarily permitted the taking of the blood sample. No exception was taken to this procedure and we need not determine whether this question was for the court or the jury or whether it was necessary that the sample was voluntarily given. It is sufficient that the instruction was not less favorable to defendant than he was entitled to receive.' There is some difference in the situation as between State v. Koenig, supra, and this case. In this case exception was taken to the procedure, both as to exclusion of the...