State v. Hansen

litigation The likelihood of future uncertainty degree

turns on the about

the title. raised the devise question in this

before us has not been determined point

jurisdiction a refined and involves

the law of wills. the executor’s au While cogent, meaning

thorities are the technical justifies

of “heirs” cited Wheelers probability

their claim of a reasonable litigation be, litigation.

future If is to matter,

ought probate now in against

rather than later the Wheelers. In concluding suggest

so we do that we

approve overly-technical objections title

or that we recede from the rule that a possibility litigation

mere ren does not

der a title unmarketable.

We hold that this title is not mar

ketable without a determination which is

binding on testator’s heirs. We therefore

return the sup case to district court for a

plemental hearing peti on the executor’s estate,

tion to sell real upon notice to testa

tor’s heirs. party proceed If to such

ing desires the court also construe the

will, he can by appropri tender that issue Code, pleading. 633.11, ate 633.- §§

389, 633.391.

Reversed and remanded with directions. Iowa, Appellee,

STATE of Jasper HANSEN, Appellant.

Daniel

No. 55248.

Supreme Court of Iowa.

Dec.

Patterson, Lorentzen, Duffield, Timmons Irish, Moines, appellant. Des for & Turner, Gen., Atty. Rob- Richard C. Gen., ap- Atty. Jacobson, ert Asst. D. pellee.

LeGRAND, Justice. some following arrested

Defendant was Cumming driving on I-3S near erratic January He interchange on driving a mo- later convicted in- influence tor vehicle while toxicating liquor in violation 321.281, appeals from He The Code. con- on that judgment imposing sentence for a and remand reverse viction. We new trial. assignments deprives error involve is bad (1)

The two because him of due process questions destroys make a recitation of in- unnecessary. nocence; assignments are: facts These shifts to him burden (2) of going both forward with the evidence giving (1) The court erred in Instruc- persuasion and of by produc- requiring the statutory dealing presump- 14 with the tion of presumption tion evidence to rebut the speci- presence of a arising tion from arising presence from the of a stated in percentage fied of alcohol defendant’s blood; amount of alcohol his it is (3) blood; and irreconcilably in conflict with Instruction 7 dealing presumption with the of innocence receiving re- (2) The court erred confusing and results in a conflicting and of test sults defendant’s breath made charge jury; compelled to (4) and 321B.4, Code, prop- The section because no to him take the stand in his own defense in er its laid. foundation for admission was right violation of his 5th Amendment tc> 14

I. Instruction is here set out: remain silent. provides “A statute if of right legislature The of cre person operating there is evidence that evidentiary presumptions ate in criminal upon public highway, motor vehicle longer seriously challenged. cases is no operation, at had the time of more said generally upheld laws long Such are as as than ten percen- one-hundredths one pre two conditions are satisfied: Such blood, by weight tum of alcohol in his sumptions may not be conclusive of the is presumptive same be shall evidence sue and there be a rational relation person that such in- was then under the ship sought between fact estab beverage. fluence of an alcoholic lished and the one presumed. on Jones foregoing “The rule established Evidence, 134, :5, page (Sixth section 3 Ed. permits statute infer that Evidence, 1972); 3 Underhill’s Criminal defendant was under the influence an 1954, page 874, (Fifth section 1957); Ed. beverage, alcoholic it is found the Annot. 46 (1956); A.L.R.2d 1176 v. jury that at the time driv- defendant was Voltenburg, 200, 206, Van 260 Iowa 147 ing public an highway automobile on the .869, Kelly, 871 (1967); N.W.2d his blood contained more than ten one- 247, 554, 218 Minn. 15 (1944); N.W.2d 557 percentum by weight hundredths one 466, 463, Tot v. United 63 States, 319 U.S. of alcohol. S.Ct. (1943). 87 L.Ed. “However, such is inference not conclu- supra, In Voltenburg, State v. Van sive, but is rebuttable. be over- analogous we discussed an statute —section come or rebutted evidence to the con- possession making burglar 708.7 tools trary.” presumptive of intent to commit burglary held that con The statute referred this instruc- —and equally stitutional. was said there is What 321.281, Code, tion is section The which here, applicable authorities cited provides are the part that “evidence that there support of that conclusion. findWe was more than ten hundredths portion dealing of section 321.281 with percentum one weight of alcohol effect of blood alcohol is constitution tests presumptive blood shall be admitted al; but we must also determine whether evidence that the defendant was under the manner in which aris influence of an beverage.” alcoholic ing presented the test to the objected Defendant to the instruction at constitutionally proper. trial again trial, and in his for motion new each time subject presumptions without success. He claimed then, argues now, long instruction inferences is which trou- one been Stenberg McCormick, The matter said in On this confusing. blesome 622, 626, Buckley, Evidence, 245 Iowa N.W.2d page Law of Evidence, 452, 454 (1953): on 1972); Ed. (Second Jones Ed., 125-134, (Sixth 3:l-3:4 page sections ‘presump- commonly are “What known as by these and As out 1972). pointed really presump- tions fact’ are used authorities, are sometimes the terms ‘ * * * all, at but inferences. tions they “loosely” interchangeably —but —or fact,” “presumption in. the loose fundamentally different. are nevertheless sense, merely improper term an presumption is conclusion A true value, potency, probative the rational proof of mandatory makes law ’* * * fact, evidentiary Wig- facts; infer- and preliminary required the 288, IX, Evidence, Ed., on more 3rd Vol. the based on permissible finding a ence is Evidence, on Greenleaf 2491. Law Dic- Black’s existence of other facts. 144, 44, says: § 1349, Fourth pages (Rev. tionary, 917 and “ are, truth, argu- 1968). ‘They Ed. in but mere ‘ ’ * * * * * * ments, and de- attaching, in states have statutes Most pend upon and their own natural force another, significance particular way one efficacy and convic- generating in belief dis- tests which to of chemical the results mind, tion ’. alco- than stated amount close more duty hol in a defendant’s blood. not “These inferences do affect evidence, party ex- produce of either to statutory provide, Some laws where party showing cept as each is desirous exceeded, pre- it “shall be percentage is whatever he can aid his case. to Wheth- under that the defendant was sumed fact, ‘presumption er a an inference of intoxicating v. liquor.” influence of State Wig- sense’ as Dean fact the loose Childress, 1, (1954); Ariz. P.2d 333 78 274 it, litigant, depends a more describes aids 190, N. Myers, 26 St.2d 271 v. Ohio State upon knowledge common whether the Protokowicz, 55 (1971); v. E.2d 245 men, experience applied as 598, N.J.Super. 151 A.2d 396 Oth- (1959). that ordi- shown lead to belief facts prima result is ers recite that such a test usually or conse- narily and further facts un- was then facie evidence the defendant is a quences an inference follow. Such intoxicating liquor. der influence of from reasoning process, inferring an Mo.App., 435 Corsiglia, S.W.2d State v. appear in which evidence. other facts Larrabee, 156 Me. 430 (1968); * ** to be an inference is Whether (1960). 161A.2d 855 depends given set of facts drawn a from be the state of affairs whether makes (section 321.281) Our statute usually generally follows inferred of more than ten hundredths existence facts shown.” by weight of alcohol in the percentum one “presumptive evidence” defendant’s blood part approvingly was quoted This in- of an influence that he was Iowa, Boner, recently as 1971 beverage. toxicating There, incidentally, 161, 166. part of Instruction objectionable analo language is believe this jury. We charge to the omitted from the approach rather prima facie gous to the Voltenburg, supra, 260 v. Van Cf. State pre specifically which creates than that page page N.W.2d at Iowa at believe, too, intoxication. sumption of We backdrop, view we now this as (sometimes With inference our statute raises an it relates constitu- Instruction 14 as “presumption and not a fact”) called issue is a all, objections raised. The though have tional we presumption at even nothing prejudicial find narrow one. We presumption. it referred to as a often testimony; sets part produce rebutting that of Instruction statutory pres- out language but it does demand someone —either stipulated percentage ence of of alcohol defendant or the State —do so when tells presumptive “may evi- defendant’s blood the blood test results in- dence was under the influence an he overcome to the or rebutted However, beverage. contrary.” hold toxicating erroneously the instruction then converts instructing This is the same this into conclusive the presumption is conclusive unless produced dence to rebut it. contrary; rebutted evidence to the pur- was not intended serve saywe this is error. The test blood results pose; constitutionally could do nor so. verity do simply become because they go unchallenged. evidence, all Like comes close to the The case circum- “presumptive accept- evidence” States, Cir., stances in Barrett v. United rejected by ed or jury. Defendant’s si- F.2d court (1963), 322 where the subject lence on the lends no added making struck a federal statute cer- down strength proof to the nor State’s does it concerning operation tain evidence the of a the establishing ease burden of guilt be- justify still to “un- sufficient conviction yond a reasonable doubt. Yet that is what explains less the to [the matter] permits. instruction 14 jury.” the satisfaction of the prob- In discussing somewhat similar The court said: lem in State v. (1960), Larrabee 156 Me. 115, 855, 859, “When, however, Supreme 161 A.2d legal the Court the effect of that person rule is to state said: allow an accused to be solely guilty found of a crime on the ba- “In accordance with general the rule presumption, sis of the unless he comes weight the of evidence is deter- with forward evidence to overcome the by jury, mined the of weight the re- fact, presumed nonexistence of the sult of the test this under statute [blood] practical effect is coerce the accused to conclusive, is not but to be determined taking spite into stand of jury, once has shown that been provision Fifth Amendment ‘No the test is properly accurate and adminis- * * * person compelled shall be * * * tered. At the close of the evi- against criminal case to be witness State, dence offered the defend- presumption gives short himself.’ ant has a choice two courses to fol- privilege. shrift to the It constitutional low: (1) he choose to offer no evi- very is all say well to the defendant dence and have the case to submitted need take do the stand: all he has to jury to determine whether the evidence is to But come forward with evidence. degree proof has met the should the accused exercise his constitu- required presump- and thus'overcome the silent, privilege tional remaining innocence, may pro- (2) tion his or he decisive, to a unan- presumption amounts to ceed offer evidence in his own behalf. his swerable comment on Amend- Fifth proof The ultimate burden of remains on testify. per- ment right to A prosecution prove to the defendant’s son has than accused a crime more guilt beyond a reasonable doubt.” present right evidence in his de- right fense. He the constitutional Several North sup- Carolina cases also ” ** * sit (Emphasis on his hands. port our conclusion. A statute of that added.) state test meeting makes blood results cer-

tain prima standards admissible as facie recognize Bryant evidence. In (1957), now We instruction 645, require 264, specifically 267, Supreme does not attack N.C. 97 S.E.2d protection constitutional jury and the condemned North Court of Carolina compelled testify— against being which de- prejudicial an instruction error expressly enumerated —but which are which prima as “that fined facie evidence pre- rights as the also such fundamental particular proof suffices for the proof beyond sumption of innocence and overcome fact unless contradicted and ” * ** a reasonable doubt. other evidence.” Edwards, 269 Minn. v. See also State The court said: (1964). 130 N.W.2d a factual inference “The creates first time The issue arises here other conclusion to drawn from amendment to section because of infer- facts recited the statute. This Sixty-third General 321.281 prima ence or denominated conclusion is Assembly “presumptive evi- added It, evidence. like all facie dence, Although we statute. dence” rule weighed before the passed application and yet have not on its can render verdict. In criminal cases effect, broadly to- have rather hinted at evidence, coupled this with other evi- day’s decision on several occasions. dence, guilt must establish defendant’s beyond a reasonable doubt. Defendant supra, 260 Voltenburg, Van In entitled have the scrutinize page page at at Iowa this evidence all of the other does statute, considering we made a similar with a inno- pertinent statement: cence favor. does not suffice challenge “Although defendant does not proof for ‘until contradicted and over- given jury note the the instructions come It fall evidence.’ be- ef- trial court to the was advised cause of its own weakness. The facts presumption in- statutory here fect the application which call for an of the stat- possession burglar’s [making volved of utory may, rule of evidence when viewed intent to presumptive tools evidence of perspective, in their proper cause burglary commit under section jury reject 708.7] to unworthy as of belief the burden of conclusive, imposes no not prima evidence created the stat- facie * * * defendant, and proof upon even ute.” if remained tools possession burglary of not unexplained could Cooke, Several later cases — State v. to prove the State 644, guilty (1967), N.C. 270 155 165 and S.E.2d failed found doubt.” a reasonable guilt beyond his 652, (1967), State v. 270 155 N.C. S. Jent (Emphasis added.) E.2d 171 — reiterate the rule of v. State Bryant, supra. support Additional is found burglary a involving In an earlier case v. (Haw.1971), Cuevas 488 P.2d defend- the effect

322, charge, we considered of dealing See also annotation possession recently goods stolen ant’s of subject with this at 16 A.L.R.3d 748 561, Iowa (State Brady, v. and said: (1967). [1903]) 97 N.W. problem The is well stated * ** “The further instruction Kelly, 218 Minn. possession stolen the effect such of (1944), where court said: presumption a property raise ‘to validity the attend- testing “In guilt of statutes creat- of the defendant unless prima evidence ing proof facie use in or other ing for criminal circumstances cases, hereby only presumption that is keep we must mind overcome the not guarantees process doubt of due trial raised as to create reasonable guilt,’ just support much Instruction does what perhaps too Brady precedents conveys to justify us the no- some feared — tion that ground; “presumptive case but the unrebutted reversing the on dence” unhappily required, permitted, chosen. rather than language we think the ‘presumption finding does attach defendant was under the influence law circumstance, an guilt’ given beverage. nor alcoholic require the accused to ‘overcome does raised,’ thereby presumption in order An instruction this should on issue acquittal. to be to an What entitled presumptive set out the fact that the test is say posses- law does is that the fact of charge evidence and to determine guilt sion is under all the facts and circumstances in returned, un- may properly be conviction the case whether defendant was less circumstances de- the other facts or beverage. an intoxicating influence of It that, notwithstanding veloped be such significance should place on the failure possession, jury still recent entertains produce rebutting evidence. We hold a reasonable doubt of the defendant’s reversibly Instruction 14 was erroneous participation in the crime. inis this already the reasons stated that defend ‘presumption’ sense words ant is entitled a new trial. While ‘prima facie evidence’ be under- (section is itself constitu 321.281) stood employed when in this connection. tional, represents instruction here an In 1 McClain’s Criminal] application provi unconstitutional of its Law, 617, it is said the rule here stated § sions. considering Even after the instruc principle is ‘sounder in than that which whole, tions obliged which we are requires the defendant in some form to do, we are satisfied Instruction 14 cannot overcome the and establish approved. ‘presump- innocence.’ That the word II. The second error concerns the ad- tion,’ cases, used class indL mission of the results of the so-called cates pos- more than fact no breathalyzer Objection test. was made at session is sufficient evidence to sustain a concerning sufficiency trial the of the finding guilt, of is shown the lan- dispute The foundation. centered around guage employed opinion in the of this provisions 321B.4, of section court Kelly, State v. [644,] 57 Iowa provides part material follows: where it N.W. is said: ‘The unexplained recent possession of stolen officer, “However, any peace using de- property tends to guilt establish the of com- approved by vices and methods person possession in whose is public may take a safety, missioner of found, and will authorize conviction un- specimen person’s urine breath or of less the guilt inference of is overcome purpose determining for of the alco- other tending facts establish the inno- person’s holic blood. content of * * * ” cence of the accused. The law (Emphasis added.)

holds question, objected was no show- there Defendant unless overcome, will authorize a convic- had ing that the devices methods used or If, tion.’ indicated, as here the term pub- approved the commissioner of been ‘presumption guilt’ be understood as lodged safety. objections were lic All something conviction, which authorizes police officer during testimony it, something and not requiring the use is took the test. who open criticism; just but, unless guarded by proper explanation, think we here properly is if this error We doubt danger there is jurors may give question since review, pass for but the latter arise on re-trial. necessarily construction.” the matter will MASON, RAWLINGS, assigned error consider REYNOLD- therefore We McCORMICK, SON taking JJ., and concur. concerning of the test. section, two comply with In order MOORE, REES, J.,C. and UHLEN- First, it must must satisfied. conditions HARRIS, JJ., HOPP and dissent. public the commissioner appear that and methods” safety approved “devices section administering tests under for MOORE, (dissenting). Chief Justice Code; second,

321B.4, the evi- The respectfully I interpre- dissent used devices were must show those dence tation given Instruction in Division I of giving followed were and those methods opinion the majority de- reversal of bare officer’s conclusion the test. The fendant’s conviction. is is There no he did so insufficient. adopted by showing any standards were pointed right As majority out commissioner; nor, adopted, if what legislature properly to enact drawn they were. evidentiary presumptions creating statutes in criminal is now cases well established. cross-examination, purposes For pass they To constitutional muster reason, is enti for no other a defendant made the issue in- conclusive of and methods to know what devices tled and must have a rational relation- volved court, too, approved. The trial have been ship sought to be estab- between the fact in order be advised on this matter should presumed. lished and the one admissibility of rule on the the offered Davis, Law evidence. Cf. Administrative law this area thus The fundamental 36-41, Text, pages sec (1972), Third Ed. 126, page in 29 section stated Am.Jur.2d 140-142, 6.02. pages 2.06 tion 159: necessity recently emphasized the haveWe of the various states contain statutory procedure giving “Statutes following 321B, creating chapter or declar- numerous enactments tests authorized cer- specifying that apply ing presumptions with pronouncements These Code. adopted prima ev- facie rules tain facts shall constitute administrative equal force to facts, effect which authority granted to the other idence of pursuant to the party favor Safety. in whose of Public State v. to relieve the Commissioner Wallin, produc- (Iowa 1972); they necessity operate cast Boner, ing upon an issue and 165 Iowa N.W.2d going for- 1971). party the burden not, They do ward with the evidence. case, assuming re-trial On of this however, proof, but burden of shift the made, proper objection is the results the prima facie permit a simply one to make breathalyzer test administered to defendant not make way he could case in a only upon showing should admitted without the statute.” approved devices methods and (1) Safety the Commissioner Public or infer- creating Statutes taking provided percent- in specific such sec tests ence of intoxication proof person’s system test ages tion 321B.4 and was alcohol must (2) in Annot., given approved use devices and See 16 A.L. be made rebuttable. R.3d, 748, p. methods. 5. III. Because we hold there was reversi- Instruc- is Iowa Uniform Instruction 14 14, we

ble error in Instruction reverse the adopted prepared and It tion 520.8. was court new trial and remand for trial. Iowa of the State by an able committee with these disagree Bar Association. We and remanded.

Reversed 224 reluctantly.

uniform instructions Ness v. Instruction 9 states: H. Company, M. Lumber Iltis 256 Iowa you “Before can convict the defendant 588, 593, 240; N.W.2d McMaster charged crime in the information Hutchins, 39, 45, 255 Iowa in case, this prove by State must 509,512. beyond dence a reasonable doubt each Throughout one instructions the trial of the following propositions : put court the burden on prove the State to herein, “1. That the defendant Daniel guilt beyond defendant’s a reasonable Hansen, Jasper operate did a motor ve- doubt. public hicle highways of War- County, ren Iowa. Instruction includes: “2. at That the time the defendant charge County “To said Attor- operate did so a motor he vehicle ney’s Information the defendant has en- under the influence of an alcoholic bev- plea guilty. tered a of not This is a de- erage. every charge part nial of the and there- of, places on State burden of “3. That said acts place took in War- proving allegations beyond therein ren County, Iowa on or about the 1st prove reasonable doubt. The must day January, guilty beyond defendant a reasonable you doubt or acquit him.” you “If find from the evidence that beyond State has established a rea- Instruction states: sonable doubt each one above three propositions, you then should find are questions “You to determine the charged guilty defendant in the submitted from the case information. record, offered and the law as given you these instructions. prove “If the failed to said beyond attempted propositions doubt, court has

“The to em- a reasonable applicable body you all the law one of then cannot convict the defendant instructions, you your but in the consideration return should verdict of thereof, not guilty.” each instruction should con- light harmony in the of and strued sentence of first Instruction instruction, every applied

with states: burden “The is on the State to as a whole all the evidence admitted prove beyond guilty the defendant a rea- at the trial.”

sonable doubt.” followed defini- Instruction 7 states: tion of “reasonable doubt”. presumes “The law In Instruction the trial court instruct- in a criminal action is innocent and not evidentiary presumption ed on the or infer- guilty charged against of the offense ence authorized Code section 321.281. presumption requires

him. This you to It states: put your suspicion out all minds might which arrest, provides arise “A statute of this information, operat- arraignment, person if or there is evidence present . public high- ing situation the defendant. The a motor vehicle operation, prevail way, of innocence must has at the time of said beyond unless the evidence more ten one-hundredths one establishes than percentum by weight reasonable doubt defendant com- alcohol against presumptive mitted the charged blood, offense shall be him.” the same evi- they jury person may dence that such was then consider other evidence together beverage, permissive influence with the of an alcoholic inference. I would by foregoing “The rule established affirm. permits to infer influence defendant was under the of an REES, HARRIS, UHLENHOPP it is found beverage, alcoholic join in JJT-, this dissent.

jury that at the defendant was time driv- ing public highway an automobile on the

his blood than contained more ten one- by weight percentum

hundredths of one

of alcohol.

“However, such inference is not con-

clusive, may but It rebuttable.

overcome or rebutted evidence

contrary.” Appellee, Iowa,

STATE merely states rule of This instruction as created the statute. It evidence Joseph SLOAN, Jr., Appellant. John proof. burden of no reference to the makes No. duty imposes no on defendant It burden or statutory merely because rule Supreme of Iowa. Court play. into fail to see come I wherein 20, 1972. Dec. presumes guilt defendant’s Instruction to prove relieves State of its burden or beyond

guilt a reasonable doubt. Such by defendant are untenable.

contentions necessity the instruction states

Of

inference which drawn con-

clusive but is rebuttable. Somehow interprets

majority the instruction as mak-

ing permissive inference I conclusive. specifically so read

do not it. states

“such inference is not conclusive.” It does require anything. defendant to do 14 simply

Instruction states such evi-

dence referred in the statute

permits the infer defendant

under the alcoholic influence of an bever-

age may be overcome rebutted

dence to the contrary. The State’s evi-

dence contains per- much rebuttal

missive It includes the inference. arrest-

ing testimony officer’s that difficulty

without produced his li- driver’s

cense, readily he responded questions, he

performed the breath test without difficul-

ty cooperative. and was at all times Cer-

tainly it is not error to reversible tell the

Case Details

Case Name: State v. Hansen

Court Name: Supreme Court of Iowa

Date Published: Dec 20, 1972

Citation: 203 N.W.2d 216

Docket Number: 55248

Court Abbreviation: Iowa