State v. Weltha
| Decision Date | 14 May 1940 |
| Docket Number | 44913. |
| Citation | 292 N.W. 148,228 Iowa 519 |
| Parties | STATE v. WELTHA. |
| Court | Iowa Supreme Court |
Appeal from District Court, Hamilton County; H. E. Fry, Judge.
Defendant was indicted for manslaughter, it being charged that the death of Victoria Urbatch was caused by reckless driving of a car by the defendant while under the influence of intoxicating liquor. Trial to jury resulted in a verdict of guilty. From judgment on verdict defendant appeals.
Reversed.
Fred D. Everett, Atty. Gen., Jens Grothe, Asst. Atty. Gen., and Geo. B. Aden, Co. Atty., of Webster City, Hamilton County Iowa, for appellee.
C. A Smedal, of Ames, for appellant.
Primary highway No. 69 passes in a straight line north and south through Hamilton County except that about 2 miles west of Randall, it runs east and west for about a mile. Defendant operated a garage at Randall but lived with his family about 2 3/4 miles west. The road out of Randall to No. 69 was graveled. On Easter Sunday, April 17, 1938, at about 6:30 or 7:30 o'clock p. m., defendant was proceeding homeward from his garage. His course took him over the gravel to the pavement and thence on the east and west stretch of No. 69 to the place where that highway turned north. Meanwhile one Rydson, accompanied by Miss Urbatch and her sister, was approaching on No. 69 from the north. The two cars met in the curve with the result that all of the occupants of the Rydson car were killed. One of the girls was alive after the accident and was taken to Story City but died either on the way or shortly after reaching the hospital there. Defendant was found slumped over the steering wheel of his automobile unconscious. He was hurried to the same hospital but for some reason was left in a wheel chair on the veranda. From thence he was taken to the operating room and placed on the table.
Dr. Lewis, whose evidence will have attention hereafter, gives a description of the defendant's condition. The defendant, this witness said, was badly battered, his face covered with blood, and he had cuts about his head and face; his jaw was broken and he had lost some teeth. Dr. Lewis said that he learned later that appellant's lower jaw was so " busted" that they had to cut underneath the jaw to wire it together; that defendant had a broken leg, was in a state of shock, and his condition not good.
Another witness for the state testified:
On the whole, defendant was so disfigured that Dr. Lewis did not recognize him at the trial. Notwithstanding appellant's condition, and the fact that he was then being treated by Dr. Lekwa, Lewis proceeded to draw from defendant's arm the blood sample which was the subject of much controversy in the case. No effort was made to contact defendant's wife although she was in the corridor of the hospital. There was no one present to speak for the defendant, and he being unconscious could neither assent nor protest. As stated above, defendant was in a hospital in Story County. Dr. Lewis was coroner of Hamilton County. He had accompanied the sheriff of that county to the scene of the accident. Finding the defendant no longer there, he went to the hospital where the blood sample was taken. There had been no information filed against the defendant and he was not under arrest.
Dr. Lewis, by virtue of his position as coroner, was a county official of Hamilton, not of Story County. Section 520, Code of 1935. We are not called on to decide whether even if he had been coroner of Story County, he would have been justified. It might not be out of place to say, however, that neither in the statutes nor in our decisions do we find warrant for what was done. The coroner is not listed as a peace officer in section 13405, Code of 1935, and if he had been, Lewis was not acting at the time either under any authority of his office, or the warrant of a magistrate. We have here then a situation where a volunteer, without legal warrant and without express or implied assent, intrudes himself into an operating room and takes from an unconscious patient a blood sample to be used to make or sustain possible future criminal prosecution. We cannot bring ourselves to approve such a course; and we find no authority which requires us to do so. We do not overlook the many citations in the briefs, least of all our own decisions. State v. Tonn, 195 Iowa 94, 191 N.W. 530; State v. Rowley, 197 Iowa 977, 195 N.W. 881; State v. Rowley, 216 Iowa 140, 248 N.W. 340; State v. Hassan, 149 Iowa 518, 128 N.W. 960.
The majority opinion in State v. Tonn, supra, speaks for itself. The dissenting opinion expresses the views in which this writer would have concurred had he then been on this bench. That he is not alone in this view, see the vigorous expression of Mitchell, J., in Vilas v. Iowa State Board of Assessment and Review, 223 Iowa 604-615, 273 N.W. 338, 343, 344.See, also, State v. Rowley, 216 Iowa 140, at page 145, 248 N.W. 340, at page 342, where we used this language, Kintzinger, J., speaking for the court:
We are not called on nor are we attempting to review or reconsider the rule of the Tonn and other cases cited. Those decisions deal with persons under arrest or charged with crime. We are not disposed to broaden the rule announced by them to permit an invasion of the person of a citizen under the circumstances disclosed by this record. We hold that the court was in error in receiving in evidence over timely objection by the defendant, the blood sample and the testimony of experts based thereon. If further investigation of this question be desired, the authorities will be found collected in the note to United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877, 82 A.L.R. 775, at page 782, the earlier notes in the same series, and citations in current supplements.
What we have said makes it unnecessary to consider defendant's complaint that the blood sample was introduced without sufficient proof of identity, but it must be conceded that greater care might have been taken in tracing this blood in its course from the operating room in the Story City hospital to the court room in Hamilton County where the case was tried nearly seven months later. Dr. Lewis, after taking the sample, put the tube containing the blood in his pocket where apparently he carried it for about two hours when he delivered it about 10:30 p. m. to Miss Jurgens at a hospital in Hamilton County. Miss Jurgens turned it over to an office girl. The office girl in her testimony laid sufficient foundation with reference to addressing and mailing to raise a presumption that it was delivered by the postal authorities to the addressee. It was thus addressed: " From Dr. W B. Lewis, Webster City, Iowa, State Hygienic Laboratories, State University of Iowa, Iowa City, Iowa, Serological Division Chemistry." Who made up the personnel of that department is not disclosed. The parcel came into the hands of Dr. Borts, an assistant director. Deeming it for the attention of Dr. Gibson, Borts put it in some sort of a mailbox in the office. When or by whom removed from thence does not appear. This unidentified person put the parcel in another mailbox. From this latter box it was taken by an unnamed assistant to Dr. Gibson on April 20th, three days after the sample was taken. Sometime in the " late summer", Sheriff Lear of Hamilton County went to Iowa City and got the exhibit. Where, how and by whom kept from April 20, 1938, to this " late summer" date is not shown. True, Dr. Gibson says the exhibit at the trial was in the same condition as it was in the beginning; but without more of a foundation, this was a conclusion and not sufficient. See State v. Hossack, 116 Iowa 194, 201-203, 89 N.W. 1077; State v. Phillips, 118 Iowa 660, 667, 92 N.W. 876; State v. Kingsbury, 191 Iowa 743, 744-748, 183 N.W. 325; Joyner v. Utterback...
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