State v. Small

• Decision Date: 19 October 1943
• Docket Number: 46256.
• Citation: 11 N.W.2d 377,233 Iowa 1280
• Parties: STATE v. SMALL.
• Court: Iowa Supreme Court

11 N.W.2d 377

233 Iowa 1280

STATE v. SMALL.

No. 46256.

Supreme Court of Iowa

October 19, 1943

Johnston & Shinn, of Knoxville, for appellant.

John M. Rankin, Atty. Gen., Don Hise, Asst. Atty. Gen., Leon N Miller Co. Atty., of Knoxville, and Clarence A. Kading, Co. Atty., of Des Moines, for appellee.

WENNERSTRUM Justice.

The defendant, James Lewis Small, was indicted, charged with the crime of operating a motor vehicle while intoxicated. He entered a plea of not guilty and upon trial was convicted. The trial court sentenced the defendant to a term of three months in the county jail and as a further part of the judgment the sentence provided that he should pay a fine of $500 and costs. The defendant has appealed from this judgment.

The appellant is a resident of Des Moines, Iowa. At the time of the claimed offense he owned and operated a motor truck with which he hauled coal. During the morning of May 14, 1942, he and Harry McAninch, also of Des Moines, left that city to drive to Centerville, Iowa, for the purpose of obtaining coal. They were accompanied by Ottis McAninch, the father of Harry McAninch. The younger McAninch, at the time of the trial was in military service and was stationed in some foreign country. When the occupants of the truck were near Carlisle Iowa, they had some trouble with highway repair workers and there was some exchange of blows between the appellant and one of the highway construction workmen. Information concerning this difficulty on the highway was communicated to the sheriff's office of Marion County at Knoxville, Iowa and Tom May, a deputy sheriff, drove out on the highway and waited for the truck as it drove into Knoxville. After the truck had passed the deputy sheriff he followed it for a short distance and then required the driver to stop. The deputy sheriff testified that the appellant Small was the driver of the truck and that while it was being driven he observed that it was weaving back and forth across the black line in the middle of the public highway. He further testified that Small was intoxicated. Ottis McAninch testified that the appellant was seated in the middle of the seat and between him and Harry McAninch who, he stated, was driving the car. The appellant denied that he was the driver of the truck at that time and stated that Harry McAninch was doing the driving.

After the appellant was arrested in Knoxville he was taken by the deputy sheriff to the Marion County jail where he was examined by Dr. R. V. Mater. Statements made by him in his testimony concerning his observations of the appellant and the circumstances relative to the taking of a blood test are the basis of claimed error and are as follows: "On May 14, 1942, I came to the Marion County jail to examine James Lewis Small. He was making an awful fuss. He wouldn't let me take his blood until I had explained to him in detail that my examination was definitely that he was intoxicated; that I was willing to swear to it; that if he wanted a benefit of a doubt he should have a blood test. After I explained that to him I told him odds were all against him if he wouldn't have a blood test. After he understood that I was definitely going to say he was intoxicated then he consented for me to take his blood test. I took a specimen of his blood, a part of which is contained in Exhibit 'S-1.' Mr. Small's face was flushed, his pupils were dilated, he was very much on guard. He could coordinate fairly well. He was a man that was mentally bad. His temper was bad. I think he was intoxicated."

I. The appellant claims that the court committed error in permitting a state's witness to testify as to the analysis of the blood claimed to have been taken from him without his consent; that this action was in violation of appellant's constitutional guaranties of security of person and in contravention of the prohibition against illegal search and seizure as provided for in Article I, section 8 of the Constitution of Iowa. It is further contended that the specimen of blood claimed to have been taken from the appellant was obtained as the result of duress.

The question of the admissibility of testimony relative to blood tests in cases involving the charge of driving a car while intoxicated has been considered by this court in several prior opinions. We have held that if a defendant does consent to a blood test,...