State v. Williams, No. 48359

• Court: United States State Supreme Court of Iowa
• Writing for the Court: GARFIELD
• Citation: 62 N.W.2d 241,245 Iowa 401
• Parties: STATE v. WILLIAMS.
• Decision Date: 12 January 1954
• Docket Number: No. 48359

Page 241

62 N.W.2d 241 245 Iowa 401 STATE
v.
WILLIAMS. No. 48359. Supreme Court of Iowa. Jan. 12, 1954.

[245 Iowa 403] Verne Lawyer, James Lawyer, and Don Hise, Des Moines, for appellant.

Leo A. Hoegh, Atty. Gen., Rephael R. R. Dvorak, Asst. Atty. Gen., and Clyde E. Herring, County Atty., Des Moines, for appellee.

GARFIELD, Justice.

Defendant was convicted of operating a motor vehicle while intoxicated contrary to section 321.281, Code 1950, I.C.A. Upon this appeal he asserts two grounds for reversal--a remark by the trial judge during the closing argument to the jury and the claimed insufficiency of the evidence to support the conviction. We first consider the second of these grounds and hold it is without merit.

Of course we must view the evidence in the light most favorable to the state. It is

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necessary to refer only to the testimony which tends to support the verdict. We do not decide disputed fact questions in a criminal case. That is the jury's function and its verdict is binding upon us unless we are satisfied it is without substantial support in the evidence or it is clearly against the weight of the testimony. State v. Johnson, 243 Iowa 1319, 55 N.W.2d 196, and citations; State v. Marcum, Iowa, 62 N.W.2d 238.

Defendant admits as a witness he was driving his automobile on the afternoon of November 20, 1952, when it was involved in a minor collision with another car on Highway 60 in Des Moines. He had worked the night before and until one p. m. that day. He had not eaten either breakfast or lunch. Sometime after one he went to a tavern near the scene of the accident where he admits he drank three or four bottles of beer. Upon leaving the tavern he started for his home in his car and the collision occurred as he was crossing the highway in front of the tavern.

About 4:20 State Highway Patrolman McClure was notified of the collision and arrived at the scene at 4:35. Defendant was standing by his car talking with Mr. Evans, driver of the other car involved in the collision. Both defendant and Evans told the patrolman the accident occurred about 4:10. McClure testifies defendant 'was staggering, his breath was strong with alcohol and his speech slurry. I had him walk about 50 feet and back [245 Iowa 404] and when he turned to come back he staggered, straightened out and came back. * * * His eyes were bloodshot. I would say he was definitely intoxicated.'

The patrolman also says defendant told him he commenced drinking beer after one p. m., stopped about 4, had six bottles of beer and he had not been drinking since the accident. Defendant submitted to a blood test. A sample of his blood was taken at 5:05. The biochemist who analyzed the sample testifies it contained 180 milligrams of alcohol per 100 cubic centimeters of blood.

Defendant's argument the evidence is insufficient is largely based on his testimony, which has some corroboration, that he was not intoxicated, the collision occurred about 3:30 and he drank three or four bottles of beer between that time and the patrolman's arrival. Of course the jury was not bound to believe this evidence. It is contrary to testimony for the state which the jury could accept.

Applicable here is this language from State v. Gardner, 195 Iowa 439, 192 N.W. 132, 133: 'The argument of his counsel is largely based upon the assumption of the truth of his testimony, and, if it could fairly be said to be admitted or undisputed, the judgment of conviction could not be permitted to stand. * * * This can only be said by assuming the truth of the defendant's testimony and denying the truth of the showing by the state. This the court is not...