State v. Storms

• Decision Date: 15 June 1943
• Docket Number: 46216.
• Citation: 10 N.W.2d 53,233 Iowa 655
• Parties: STATE v. STORMS.
• Court: Iowa Supreme Court

10 N.W.2d 53

233 Iowa 655

STATE v. STORMS.

No. 46216.

Supreme Court of Iowa

June 15, 1943

M G. Kellam, of Greenfield, and Healey & Reynolds, of Creston, for appellant.

John M. Rankin, Atty. Gen., Don Hise, Asst. Atty Gen., and J. E. Don Carlos, Co. Atty., of Greenfield, for the State.

GARFIELD Chief Justice.

The indictment charges defendant, A. J. Storms, with the crime of operating a motor vehicle while intoxicated in violation of section 5022.02, Code 1939, in that he caused Wm. Gillispie while intoxicated, to operate a motor vehicle owned by Storms. There is no claim that defendant was intoxicated nor that he drove the car. Defendant was prosecuted because of Code, section 12895, providing that: "*** 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."

Defendant does not argue that the crime of "drunken driving" cannot be committed by one who does not drive but merely aids and abets an intoxicated driver. This court held in State v. Myers, 207 Iowa 555, 223 N.W. 166, that the crime may be so committed.

I. Defendant first challenges the sufficiency of the evidence to sustain his conviction as an aider and abettor.

Defendant was engaged in the seed business in Creston. His son Homer was a partner and general manager of the business. About five p.m. on May 18, 1942, defendant and Wm. Gillispie got in an automobile owned by defendant. Gillispie drove. They went from Creston into the country and looked at eight or ten pastures, with the thought of purchasing grass seed. About eight o'clock they came to Greenfield, parked the car, and entered a cafe together. Storms ordered supper for them both and they ate together at the same table. About an hour later they left the cafe. Defendant was first to enter the car and sat on the right side of the front seat. Gillispie got in the driver's seat on the left and drove away. The sheriff and his deputy followed the car, stopped it after it had traveled a few blocks, and arrested Gillispie for drunken driving.

Although defendant denied that Gillispie was intoxicated, there is ample evidence to support such a finding. He staggered, "he was weaving," his face was flushed, his breath smelled of liquor, a pint bottle with about an inch of whiskey in it was sticking out of a pocket in his overalls. He was seen to stagger a little when he walked into the cafe. The jury could also properly have found that defendant, notwithstanding his denial, must have known and did know of the drunken condition of Gillispie.

But, defendant argues, mere knowledge by one who is present of the commismission of a crime by another, or even negative acquiescence therein, is insufficient to constitute aiding and abetting,-there must be some affirmative act of participation or advising or encouraging it. Although a defendant's presence may under some circumstances constitute an aiding and abetting (see State v. Farris, 189 Iowa 505, 510, 178 N.W. 361; State v. Dunn, 116 Iowa 219, 226, 89 N.W. 984), generally, the law is as defendant contends. State v. Bosworth, 170 Iowa 329, 345, 152 N.W. 581; State v. Bartlett, 128 Iowa 518, 520, 105 N.W. 59; State v. Farr, 33 Iowa 553, 561; 22 C.J.S., Criminal Law, pp. 158, 159, sec. 88b (1); 14 Am.Jur., p. 841, sec. 110.

Even so, we think the evidence was sufficient to support the charge of aiding and abetting. Three peace officers testified that defendant said, in substance, following the driver's arrest that Gillispie was driving his car for him, that he had Gillispie drive his car while he (defendant) was buying grass seed. Defendant's act in seating himself in the right front seat of the car when the men left the cafe is evidence that he at least impliedly invited Gillispie to occupy the driver's seat. The jury could have found the two were engaged in a joint venture and that Storms, knowing Gillispie was intoxicated, encouraged him to drive.

II. Instruction 10 states that to aid and abet is meant to assent to an act or to lend to it countenance and approval, either by active participation in it or by in some manner advising or encouraging it. Defendant specially complains of the italicized words. Even assuming, as defendant contends, that mere assent to an act does not amount to aiding and abetting the instruction is correct. The final clause, "by active participation in it or by in some manner advising or encouraging it," amplifies the italicized words and describes the kind of assent necessary to constitute aiding and abetting. The quoted language does not, as defendant argues, refer merely to the clause immediately preceding it, "to lend to it countenance and approval." Almost the identical language...