State v. Weltha, No. 44913.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtSAGER
Citation292 N.W. 148,228 Iowa 519
Decision Date14 May 1940
Docket NumberNo. 44913.
PartiesSTATE v. WELTHA.

228 Iowa 519
292 N.W. 148

STATE
v.
WELTHA.

No. 44913.

Supreme Court of Iowa.

May 14, 1940.


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.


SAGER, Justice.

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

[292 N.W. 149]

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: “I stood beside the chair in which he (defendant) was sitting. * * * There was blood on the porch floor and his head was dreadfully swollen. * * * He complained or groaned. I knew he was hurt dreadfully.”

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.

[1] 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: “Defendant also complains of the admission of certain exhibits, claimed to have been obtained without a search warrant, in violation of the search and seizure provisions of the Constitution of Iowa. The writer of this opinion believes there might be some merit in this contention, notwithstanding our holding in State v. Tonn, 195 Iowa 94, 191 N.W. 530, provided the evidence showed the officers entered defendant's home without a search warrant. There was evidence in the record, however, tending to show they had a search warrant, and that it was read to Mr. or Mrs. Rowley.”

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

[292 N.W. 150]

this record. We hold...

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26 practice notes
  • State v. Gibbs, No. 18-1298
    • United States
    • United States State Supreme Court of Iowa
    • April 17, 2020
    ...that, pursuant to our decisions in State v. Height , Wragg v. Griffin , [185 Iowa 243, 170 N.W. 400 (1919) ], and State v. Weltha , [228 Iowa 519, 292 N.W. 148 (1940) ], defendant could not be compelled to submit to a blood test, that does not mean that his refusal to submit to it cannot be......
  • Ver Steegh v. Flaugh, No. 50015
    • United States
    • United States State Supreme Court of Iowa
    • June 14, 1960
    ...The testimony as to packaging and mailing raised a presumption of delivery by these authorities to the laboratory. State v. Weltha, 228 Iowa 519, 524, 292 N.W. 148. And the testimony shows such delivery. That the specimens [251 Iowa 1019] which were analyzed were sufficiently identified see......
  • State v. Cram
    • United States
    • Supreme Court of Oregon
    • May 15, 1945
    ...the defendant to submit to the examination, which was, in effect, requiring him to furnish evidence against himself." State v. Weltha, 228 Iowa 519, 292 N.W. 148, involved the admissibility of evidence concerning a blood sample taken from an unconscious person under the following circumstan......
  • Rochin v. People of California, No. 83
    • United States
    • United States Supreme Court
    • January 2, 1952
    ...for venereal disease; State v. Height, 117 Iowa 650, 91 N.W. 935, 59 L.R.A. 437, examination for venereal disease; State v. Weltha, 228 Iowa 519, 292 N.W. 148, blood test to determine intoxication, limiting rules on search and seizure; but cf. State v. Benson, 230 Iowa 1168, 300 N.W. 275, c......
  • Request a trial to view additional results
26 cases
  • State v. Gibbs, No. 18-1298
    • United States
    • United States State Supreme Court of Iowa
    • April 17, 2020
    ...that, pursuant to our decisions in State v. Height , Wragg v. Griffin , [185 Iowa 243, 170 N.W. 400 (1919) ], and State v. Weltha , [228 Iowa 519, 292 N.W. 148 (1940) ], defendant could not be compelled to submit to a blood test, that does not mean that his refusal to submit to it cannot be......
  • Ver Steegh v. Flaugh, No. 50015
    • United States
    • United States State Supreme Court of Iowa
    • June 14, 1960
    ...The testimony as to packaging and mailing raised a presumption of delivery by these authorities to the laboratory. State v. Weltha, 228 Iowa 519, 524, 292 N.W. 148. And the testimony shows such delivery. That the specimens [251 Iowa 1019] which were analyzed were sufficiently identified see......
  • State v. Cram
    • United States
    • Supreme Court of Oregon
    • May 15, 1945
    ...the defendant to submit to the examination, which was, in effect, requiring him to furnish evidence against himself." State v. Weltha, 228 Iowa 519, 292 N.W. 148, involved the admissibility of evidence concerning a blood sample taken from an unconscious person under the following circumstan......
  • Rochin v. People of California, No. 83
    • United States
    • United States Supreme Court
    • January 2, 1952
    ...for venereal disease; State v. Height, 117 Iowa 650, 91 N.W. 935, 59 L.R.A. 437, examination for venereal disease; State v. Weltha, 228 Iowa 519, 292 N.W. 148, blood test to determine intoxication, limiting rules on search and seizure; but cf. State v. Benson, 230 Iowa 1168, 300 N.W. 275, c......
  • Request a trial to view additional results

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