Defendant was indicted for operating a motor vehicle while intoxicated, third offense, in violation of section 321.281, Code, 1950. A jury found him guilty and the court sentenced him. Upon this appeal he assigns error in submitting to the jury only two forms of verdict (1) guilty of the third offense, and (2) not guilty, and instructing the jury the two prior convictions, as charged, were established by stipulation without dispute. It is contended four forms of verdict should have been submitted (as in State v. Barlow,
At the trial, while proof was being offered of the first previous conviction charged, defendant’s counsel admitted both of the convictions as charged. The trial court’s action of which complaint is now made was based upon this admission. It is argued constitutional and statutory guarantees of a jury trial entitled defendant to have the jury pass upon his guilt of the *1318 prior convictions notwithstanding the admission. See Iowa Constitution, Article I, sections 9-10; Code, 1950, sections 777.16, 780.23.
The contention- here made was not raised in the court below by exception to instructions or otherwise although defendant was represented by able and experienced counsel (other than his present attorney). Under numerous decisions we would be justified in not considering the complaints first raised here. State v. Grigsby,
We have at times reviewed such assignments of error as a matter of grace. Mart and Albertson cases, supra; State v. Hofer,
We have held in several criminal cases it is not error for the court in its instructions to assume as true an evidential fact which both parties admit and .as. to which there is no dispute. State v. Dunne, supra,
This general rule is stated in the annotation in 70 A. L. R. 94: “It is generally held that any concession, admission, or statement by a defendant’s attorney in a criminal case obviates the necessity of the prosecution’s introducing evidence pn the point,, but the prosecution is not precluded from .introducing such evidence.”
The annotation in 11 A. L. R.2d 870, 875, states: “An admission, by one accused of crime, of his identity with a. person who was previously convicted as alleged has. been held in many *1319 instances to obviate tbe necessity for further proof thereof.”
There is no merit to the suggestion in argument there should be some affirmative showing in the record that defendant’s attorney upon the trial had authority to make such an admission. It was made in defendant’s presence during the trial. He interposed no objection thereto and it is presumed to have been made with his consent. State v. Wilson (Ladd, J.), supra,
Since the two prior convictions were admitted of record it was unnecessary for the jury to pass upon them as a disputed fact issue, and the court properly .instructed the jury .regarding them. Nor was it necessary to submit more than the two. forms, of verdict.
Our decision does not conflict with State v. Lowe,