State v. Whitney, 48834

• Decision Date: 09 May 1956
• Docket Number: No. 48834,48834
• Citation: 247 Iowa 920,76 N.W.2d 890
• Parties: STATE of Iowa, Appellee, v. George Leonard WHITNEY, Appellant.
• Court: Iowa Supreme Court

Page 890

76 N.W.2d 890

247 Iowa 920

STATE of Iowa, Appellee, v. George Leonard WHITNEY, Appellant.

No. 48834.

Supreme Court of Iowa.

May 9, 1956.

Verne Lawyer and Robert D. Ray, Des Moines, for appellant.

Dayton Countryman, Atty. Gen., Raphael R. R. Dvorak, Asst. Atty. Gen., and J. P. Denato, Asst. County Atty., Des Moines, for appellee.

OLIVER, Justice.

Defendant pleaded not guilty to an indictment which charged him with operating a motor vehicle while intoxicated, third offense. Trial to a jury resulted in his conviction and this appeal.

Highway patrolman Leonard testified that, January 13, 1955, defendant drove an automobile in Des Moines at an unlawful speed and crowded approaching cars by angling it to the left side of the street. When arrested, defendant was unsteady, his clothes were 'mussy', his eyes bloodshot and his face slightly flushed. His breath smelled of liquor. He was unable to perform the heel-toe test by walking in a straight line. He stated he had drunk about six glasses of beer. 'In my opinion he was very drunk.' Other witnesses testified a blood test, consented to by defendant, showed 234 milligrams of alcohol per 100 cc of blood, and that 150 milligrams is the standard accepted as defining intoxication. Defendant testified he had been a taxicab driver since September, 1954, and the work was very light, that he worked the night before his arrest, had no sleep for twenty four hours, was tired and weak from loss of sleep, had consumed six bottles of beer during the day, and when arrested about 4 P.M. was taking an intoxicated man, with whom he had been drinking beer in taverns, to Mary's place, but was not intoxicated.

I. Defendant testified also he was an automobile mechanic but had closed his repair shop May 11, 1954. He was then asked, upon direct examination: 'Q. What was the reason you closed it? Objected to as irrelevant. Sustained. Q. And what time did you stop operating your shop? Objection--sustained.' Counsel for defendant then stated it was part of the history of the defendant and his previous condition should be relevant. The court: 'Objection sustained.' 'He has already answered that he quit May 11,' 'Q. * * * did you begin to drive a cab from choice of employment? Objection: Sustained.'

Defendant predicates error upon these rulings, his contention now being the evidence was offered to establish that his appearance was due to poor health rather than intoxication. However, he was permitted to testify his weight had decreased thirty pounds in the last year and that he was then under the...