State v. Werling

• Decision Date: 08 March 1944
• Docket Number: 46380.
• Citation: 13 N.W.2d 318,234 Iowa 1109
• Parties: STATE v. WERLING.
• Court: Iowa Supreme Court

13 N.W.2d 318

234 Iowa 1109

STATE v. WERLING.

No. 46380.

Supreme Court of Iowa

March 8, 1944

Appeal from District Court, Cedar County; Guy P. Linville Judge.

France & France, of Tipton, for appellant.

John M. Rankin, Atty. Gen., Wm. F. McFarlin, Asst. Atty. Gen., and Reid L. Hunt, Co. Atty., of Tipton, for appellee.

MILLER Justice.

I. Defendant in appealing from his conviction of driving a motor vehicle while intoxicated, by his first assignment of error challenges the competency of a sample of his blood, identified as Exhibit No. 1 and used as a basis for analysis to determine whether or not he was intoxicated. The contentions are: (a) That it was not properly identified and (b) that it was procured by duress. We find no merit in either contention.

Defendant was arrested by Andre F. Carstensen, a member of the Highway Patrol, who testified that, when the defendant was in jail, he asked him to submit to a blood test. The defendant said he would and he took defendant to the office of Dr. Hoffman, who took a sample of defendant's blood, put it in a glass tube and handed it to him. He further testified: "The container was sealed when placed in my hands." He saw Dr. Hoffman write defendant's name on it. Carstensen kept it over night, then gave it to Patrolman Schneider. Schneider testified that he received the blood sample from Carstensen and took it to the University Hospital at Iowa City, where he delivered it to the technician, Miss Gardner. Miss Gardner testified that she received the blood sample from Schneider and wrote defendant's name on the container. She broke the seal and delivered the tube to Dr. Gibson, who opened it in her presence. She then made an analysis of the contents under the supervision of Dr. Gibson and found the amount of alcohol was 246 milligrams per hundred cubic centimeters of blood. She then put a small amount of sodium fluoride in the remainder to preserve the blood. Dr. Hoffman testified to the taking of the sample of blood from defendant and that he delivered the same to Carstensen.

Defendant testified: "Carstensen asked me if I would submit to a blood test. I told him yes. Nobody told me that I had to take one, I thought you did but they didn't tell me that I had to. I thought it was the law."

We are satisfied that the specimen of blood was properly identified. State v. Halley, 203 Iowa 192, 194, 210 N.W. 749. There was no evidence of duress. The evidence was competent under the rule of State v. Morkrid, Iowa, 286 N.W. 412. We need not consider the state's contention that the evidence was admissible under the rule of State v. Tonn, 195 Iowa 94, 191 N.W. 530, and State v. Nelson, 231 Iowa 177, 300 N.W. 685.

II. Defendant's second assignment of error challenges the competency of Dr. Gibson's testimony, based upon the analysis of defendant's blood, that he was intoxicated. The first ground for such contention is that Exhibit 1 was improperly received in evidence. We have held otherwise in Division I of this opinion, supra. The second ground is that his opinion invaded the province of the jury and was improper opinion evidence. We have held otherwise in State v. Haner, 231 Iowa 348, 1 N.W.2d 91. There is no merit in this contention.

III. Defendant's third assignment of error complains of the overruling of objections to the cross-examination of defendant, whereby it was brought out that defendant had pheasants and a shotgun in his car, plead guilty to illegal possession of the pheasants and paid a fine. We are unwilling to hold that reversible error occurred.

Defendant was arrested at about 6:00 P.M., January 11, 1943. On direct examination, he testified in detail as to his conduct from 11:00 A.M. of that day until after the blood test was made that evening. The cross-examination sought more details concerning the activities that had been related on direct examination. Carstensen had testified for the state that, when he arrested defendant, he found "pheasants, shotgun and one-half gallon container of wine about one-third full." Defendant made no objection to such testimony. Defendant referred to the pheasants on direct examination and his testimony on cross-examination was cumulative to what Carstensen had given, except for the testimony which was, to a large extent, volunteered by defendant. We are unwilling to hold that the trial court so abused its discretion as to warrant or...