State v. Wheelock, No. 41521.

• Decision Date: 03 April 1934
• Docket Number: No. 41521.
• Citation: 218 Iowa 178,254 N.W. 313
• Parties: STATE v. WHEELOCK.
• Court: Iowa Supreme Court

218 Iowa 178

254 N.W. 313

STATE

v.WHEELOCK.

No. 41521.

Supreme Court of Iowa.

April 3, 1934.

Appeal from District Court, Polk County; Loy Ladd, Judge.

Appeal from judgment upon a verdict of guilty of driving an automobile while in an intoxicated condition. The facts are stated in the opinion.

Affirmed.

See, also, (Iowa) 250 N. W. 617.

MITCHELL, EVANS, DONEGAN, and KINTZINGER, JJ., dissenting.Thomas J. Guthrie and George A. Wilson, both of Des Moines, for appellant.

Edward L. O'Connor, Atty. Gen., Walter F. Maley, Asst. Atty. Gen., and Francis J. Kuble, Asst. Co. Atty., of Des Moines, for the State.

CLAUSSEN, Chief Justice.

The defendant was charged by indictment with the crime of driving an automobile while in an intoxicated condition. The case was tried to a jury, which found the defendant guilty as charged.

[1][2] I. In the course of the examination of prospective jurors a demonstration took place, which was participated in by spectators and certain members of the jury panel. In the further course of the selection of the jury, one of the members of the panel who took part in the demonstration was retained on the trial jury, over objection on the part of the defendant. Such juror stated upon her examination that she had no opinion as to the guilt or innocence of the defendant and had no bias or prejudice against him. The trial court has a large discretion in passing on the qualifications of jurors. In the present instance the propriety of allowing this juror to remain upon the panel has twice passed the scrutiny of the trial court. A majority of this court are of the opinion that an abuse of discretion by the trial court is not shown by the record.

The grounds for challenges to a juror for cause are specified in Code, § 13830. If the particular jurors were subject to challenge for cause, it must have been under subsection 11 of that section, which reads as follows: “11. Having formed or expressed such an opinion as to the guilt or innocence of the prisoner as would prevent him from rendering a true verdict upon the evidence submitted on the trial.”

The question is whether the jurors had formed or expressed such opinions. It was for the trial court to weigh the circumstance of participation in the demonstration and the answers of the jurors in the determination of the question. It has been held that membership in an anti-thief association does not of necessity disqualify a juror in the trial of a larceny charge. State v. Van Hoozer, 192 Iowa, 818, 185 N. W. 588. Strong prejudice against the nationality of the defendant has been held not to disqualify a juror ipso facto. State v. Giudice, 170 Iowa, 731, 153 N. W. 336, Ann. Cas. 1917C, 1160. And the existence of an opinion concerning the guilt or innocence of the defendant, other than a fixed opinion, has been held to be no insuperable objection to serving on a jury. State v. Smith, 73 Iowa, 32, 34 N. W. 597;State v. Munchrath, 78 Iowa, 268, 43 N. W. 211;State v. Lindsay, 161 Iowa, 39, 140 N. W. 903;State v. Ralston, 139 Iowa, 44, 116 N. W. 1058;State v. Brady, 100 Iowa, 191, 69 N. W. 290, 36 L. R. A. 693, 62 Am. St. Rep. 560. It is the duty of the court to determine whether the juror has such convictions in the matter as will prevent the return of an impartial verdict (State v. Munchrath, 78 Iowa, 68, 43 N. W. 211;State v. Brady, 100 Iowa, 191, 69 N. W. 290, 36 L. R. A. 693, 62 Am. St. Rep. 560), and in the determination of the question the trial court rightly has a large, although not unlimited, discretion. State v. Teale, 154 Iowa, 677, 135 N. W. 408;State v. Heft, 155 Iowa, 21, 134 N. W. 950;State v. Brown, 130 Iowa, 57, 106 N. W. 379;State v. Kendall, 200 Iowa, 483, 203 N. W. 806. The answers of the juror indicated that she was qualified to act as a juror. It cannot be said that her indiscretion in taking part in the demonstration so completely overbalances the result of her oral examination as to warrant interference with the action of the trial court.

[3] In the examination of jurors the court refused to permit jurors to reveal the identity of other members of the panel who participated in the demonstration above referred to. Appellant complains of this. The purpose of the examination of a juror is to determine his or her fitness to sit on the jury. What other members of the panel may have done is not material to that question.

[4] II. Appellant complains that misconduct of counsel for the state and many other occurrences of the trial prevented him from having a fair trial. An enumeration of all the matters complained of in this respect would serve no useful purpose. The trial was long and was stubbornly contested on both sides. All of these matters took place under the eye of the trial court. The matter of granting a new trial for alleged misconduct of counsel and the many incidents that happen in the trial of a case is peculiarly within the discretion of the trial court. State v. Cooper, 169 Iowa, 571, 151 N. W. 835;State v. Waterbury, 133 Iowa, 135, 110 N. W. 328;State v. Wilson, 157 Iowa, 698, 141 N. W. 337;State v. Johns, 152 Iowa, 383, 132 N. W. 832;State v. McIntire, 89 Iowa, 139, 59 N. W. 419. The entire record has been carefully examined by this court and the ruling of the trial court will not be disturbed.

[5] III. Ths trial of the case attracted large crowds to the courtroom. During the course of the long trial there was one outburst in the courtroom, which is described in the record as “a very distinct murmuring or rumbling of suppressed laughter which did not get into the realm of loud laughter at all,” in addition to that which occurred during the selection of the jury. The outburst was promptly suppressed by the court. The crowded condition of the courtroom made it inconvenient to keep witnesses in attendance, and to get them on the stand when required. Defendant contends that the audience was hostile to him and that its influence on the jury was coercive, and that the situation in the courtroom prevented him from having a fair trial. The record indicates that the trial court had the entire situation well in hand. It does not present a situation in which we are at liberty to disturb the judgment of the trial court.

IV. The defendant complains of rulings of the trial court upon objections to questions asked him on cross-examination and recross-examination in relation to his use of intoxicating liquor on the day of the occurrence and concerning his possession of intoxicating liquor in his home on that day. He was not asked on direct examination whether he had used intoxicating liquor on that day. Neither did he say anything on direct examination as to whether he was drunk or sober. In this situation he complains that the questions in relation to his use of intoxicating liquor were not directly connected with matters concerning which he had testified in chief and consequently improper under the provisions of Code, § 13892. The defendant testified to the occurrences which took place between the time he left his home and the time of the collision, and also testified to the manner in which the accident happened and his trip to the hospital, the administration to him in the hospital of apomorphine and of being taken to the police station, and his mental or nervous condition at the police station, not however with reference to being drunk or sober.

The record indicates that at the close of his cross-examination he was asked one question in relation to whether he had used intoxicating liquor that morning before he started on that trip. On redirect examination he testified that he had one drink at about 1 o'clock. Upon recross-examination, inquiry was made concerning where he had taken this drink and whether he had partaken of intoxicating liquor at other places, including his home, and whether he had intoxicating liquor in his home.

[6][7] We have held that a defendant testifying in his own behalf is subject to cross-examination exactly the same as any other witness in relation to matters pertaining to his memory, motives, history, and credibility, and we have recognized that the extent to which such injuries may be carried rests largely in the discretion of the trial court. See State v. Burris, 194 Iowa, 628, 190 N. W. 38, where the authorities are collected. Notwithstanding the fact that the defendant had not testified concerning the use of intoxicating liquor, upon direct examination, it seems obvious that it was proper under the record to make inquiry concerning the use of intoxicating liquors by the defendant for the purpose of enabling the jury to properly weigh the testimony of the defendant. It was a matter immediately associated with his ability to observe and remember what transpired, and the use by him of intoxicating liquor might quite logically have had as much effect upon his condition at the police station, whatever that may have been, as the administration of apomorphine at the hospital. See State v. McClain, 191 Iowa, 750, 183 N. W. 305.

[8][9][10] Possession of intoxicating liquor by the defendant was undoubtedly unlawful, and he complains because the tendency of the cross-examination was to prove such unlawful act. Ordinarily proof of other unlawful acts is not permissible in a criminal prosecution, but cross-examination is not improper merely because it tends to establish an unlawful act, if it is proper in other respects. Evidence which is otherwise admissible is not to be excluded because it tends to establish a criminal act. State v. Burzette, 208 Iowa, 818, 222 N. W. 394. Under the record there was no abuse of discretion on the part of the trial court in permitting the cross-examination, the redirect examination, and the recross-examination, of the defendant to take the courses disclosed by the record.

[11] V. Several witnesses for defendant testified that the general reputation of the defendant for general moral character was good. On the cross-examination of such witnesses inquiry was made by counsel...