196 Iowa 1134 | Iowa | 1923
On August 12, 1922, the defendant and three friends arranged for a picnic near Ellis Park, Cedar Rapids, Iowa. The preliminaries having been completed, they started for the picnic grounds in an automobile owned by Noble Spill-man, who was one of the party. The front seat was occupied by Vina Marsh and the defendant, who was driving the car. The rear seat was occupied by Edna Morgan and Mr. Spillman. After leaving the city of Cedar Rapids, they proceeded through Ellis Park, and shortly thereafter, the car collided with some trees that stood within six inches of the traveled portion of the highway. The road at this point was narrow and rough. The car first collided with a tree near the edge of the road, and, after striking another tree 40 or 50 feet farther on, overturned. There is some testimony to show that the drag link, a part of the steering gear, was out of repair on the forenoon of the day of the accident, but of this fact there is no showing that the defendant had knowledge. Phe automobile was an old, secondhand car. The clutch was out of repair so that it caused the car to make considerable noise while in motion.
The indictment is predicated on the gross negligence ’of the defendant, and charges specific acts of negligence. The errors assigned on this appeal are legion, and, as appellant states, “like the seed of Abraham, are as numerous as the sands of the sea. ’ ’ None of the parties- involved in the transaction distinctly remember any of the occurrences connected therewith. One-of the party was killed, and the other three were seriously bruised and injured. This appeal primarily concerns itself with the admis
“There is nothing to prevent you from coming to me or going to the court, and saying, ‘We had to find him guilty, be*1138 cause it was tlie truth; but for once we wish you would stay the execution of the sentence upon this man during his good behavior.’ ”
This language constituted a direct violation of the ruling and the admonition of the court, and the appellant may well complain of the liberty or license taken in this regard. We cannot approve of such practice. It was a persistent appeal to induce the jury to return a verdict of guilty, after the ruling and admonition of the court. In passing, we cannot refrain from expressing our disapproval.
IY. The court submitted to the jury, in its statement of the charge, one of the specific acts alleged in the indictment, to wit: that tire defendant was negligent in driving said motor vehicle while he, the said defendant, was in an intoxicated condition. Thei*e was no proof to sustain this particular charge, and it should have been withdrawn.
In the eighth instruction, the jury was further instructed :
“It remains, however, to determine whether the act involved resulting in the death of Edna Morgan was an unlawful act; and if it was unlawful, whether it was done with usual and ordinary caution.”
‘ ‘ The act of the defendant which is involved is the driving of the automobile when it struck the tree; and if the defendant was driving the automobile in violation of any provision of the statute or of. the ordinances of the city of Cedar Rapids regulating the driving of automobiles, and such .driving resulted in the death of Edna Morgan, his act was not a lawful act.”
This instruction is clearly erroneous.
We do not deem it necessary to incumber this opinion by quoting certain requested instructions on behalf of defendant, as a reversal of this case must be ordered for the reasons indicated. Wherefore the judgment entered is — Reversed.