300 N.W. 275 | Iowa | 1941
Defendant was indicted for operating a motor vehicle upon the highway while in an intoxicated condition. The verdict of the jury was guilty. Sentence was for four months in jail and a fine of $600. Defendant appeals. While several assignments of error are asserted, they involve but two propositions. First, Was there sufficient evidence to sustain the verdict? Second, Did the court err in permitting a deputy sheriff to testify that defendant declined to submit to a blood test?
I. We find no merit in the contention that the evidence was insufficient to sustain the verdict. The state introduced some eight witnesses who testified to the intoxication of the defendant. Most of the witnesses so testified without objection on the part of the defendant. Such objections as were made to the testimony are not raised as grounds for reversal. Instead, defendant urges only the rulings upon a motion for directed verdict and the motion for new trial, contending that the evidence fails to establish guilt beyond a reasonable doubt and that we should reverse to prevent a miscarriage of justice. A similar argument was urged upon us in the case of State v. Carlson,
[1] II. The second proposition is not so easily disposed of. It presents a question which has not been directly decided by this court. Defendant relies upon State v. Height,
Defendant was not compelled to give evidence of his guilt. All that occurred was that a witness testified, over objection, that defendant declined to submit to a blood test. The court instructed the jury as follows:
"Certain testimony has been received to the effect that during a conversation between the defendant and the witness, *1170 John McCarthy, it was suggested to the defendant that he go to the hospital and take physical treatment and a blood test, and that the same was declined by the defendant.
"You are instructed that there is no law requiring any person, and in this case the defendant, to submit to any blood test; and the fact, if it be a fact, that he declined to so submit himself to such a test, is submitted and should be considered by you only as the same may be a circumstance to be considered by you together with all of the other facts and circumstances developed upon the trial hereof in determining the question as to whether the defendant was or was not intoxicated, at the time in question."
The foregoing instruction was excepted to and the ruling is assigned as error here. The proposition is raised in other ways, but counsel concede that the decisive question is whether the admission of the evidence constitutes a denial of a constitutional protection against self-incrimination. We are of the opinion that the evidence was admissible.
In the early case of State v. Pratt,
"It seems that there was testimony tending to show that the prisoner, when arrested, was charged with the theft and made no reply. To this proof there was no objection at the time; but an instruction was asked to the effect that such testimony `could not be used against him'. This was refused, and very properly. The objection could not regularly nor properly be raised in this manner nor at this stage of the proceedings. Then, again, while this character of proof is often entitled to but little weight, there is no rule justifying its entire exclusion. Its value is to be determined by all the circumstances, of which the jury are the peculiar judges. One person may be so confused or embarrassed, so completely taken by surprise by the unexpected and sudden arrest and charge, as, though ever so innocent, to act in a manner strongly indicative of guilt. And yet, another man, cool and self-possessed, may be able at once to command the entire situation, and though the most hardened villain, disarm suspicion and impress those around with his innocence. All these and other circumstances are to be considered. *1171
But the fact that he was charged and made no reply or denial, may properly be shown, the effect thereof being left to the jury. Wharton, 345, note 6; 1 Greenl. Ev., Sec. 215; State v. Perkins, 3 Hawks, 377,
The foregoing pronouncement is in accord with later statements of this court. In State v. Beckner,
"There can be no question but that evidence in regard to the conduct of appellant when he was accused of the crime is admissible, and is proper to be considered by the jury in passing upon the question of his guilt or innocence; and it is frequently a strong circumstance in a case."
In the recent case of State v. Johnson,
"The admission of testimony of the conduct of the defendant at the time he was first accused of the crime was not objectionable. In fact, the rule is, the conduct of the defendant when he is accused of the crime is admissible. 16 C.J. 549, section 1057, says:
"`At least in so far as they tend to connect him with the crime and are not merely self-serving, the conduct and general demeanor of the accused after the crime, his language, oral and written, his attitude and relations toward the crime, and his actions in the presence of those engaged in endeavoring to detect the criminal are always relevant, whether part of the res gestae or not.' This text finds support in State v. Beckner,
[2] Of course, when one is accused of a crime, he does not have to reply to the accusation. But if he declines to reply, his act of silence may be shown to the jury. We are of the opinion that the situation now before us is analogous. The request for a blood test did no more than inferentially accuse the defendant of intoxication. His refusal to submit is similar to a refusal to speak. The jury was told that he did not have to submit. The refusal was merely a circumstance to be considered. The court was right.
Defendant did not take the stand in his own defense. He *1172
could not be compelled to testify. Section 13890, Code, 1939. However, the fact that he did not testify was a circumstance to be considered by the jury and was a proper subject for comment by the county attorney. State v. Ferguson,
The only case which has decided the exact question before us is the case of State v. Gatton,
[3] Our constitution contains no express provision prohibiting self-incrimination. The only constitutional provision that would appear to guarantee such protection is the due process clause. See State v. Ferguson, supra. The statute is section 13890 of the Code, 1939, and provides as follows: "Defendants in all criminal proceedings shall be competent witnesses in their own behalf, but cannot be called as witnesses by the state." Defendant was not called as a witness by the state. He was not even called as such in his own behalf. The statutory prohibition *1173 was fully recognized. We then have the question remaining, Does the due process clause render the testimony of the deputy sheriff inadmissible? We answer, No. It is proper to show the defendant's conduct, demeanor and statements (not merely self-serving), whether oral or written, his attitude and relations toward the crime, if there was one. These are circumstances that may be shown. Their weight is for the jury to determine. The fact that defendant declined to submit to a blood test is such a circumstance. It may be shown. The jury may consider it. The evidence was admissible.
We find no error. The judgment is affirmed. — Affirmed.
STIGER, HALE, BLISS, and WENNERSTRUM, JJ., concur.
MITCHELL and SAGER, JJ., dissent.
