Defendant, John H. Jurgenson (Jorgen-sen in the clerk’s transcript and notice of appeal) appeals conviction for drag raсing in violation of Code section 321.284. He was tried to the court, found guilty and fined $100. We affirm.
Leon F. Washington, a Davenport police officеr testified that while on patrol with his partner on the evening of January 4, 1973, he observed two automobiles, a Che-velle and a Plymouth, racing north on Stur-devant Street. He stated he heard the loud squeal of tires and that both vehicles were accelerating and traveling at a sрeed in excess of the lawful limit. He turned on his red lights and pursued the cars. The Plymouth turned left at Rockingham Road and proceeded in a wеsterly direction. The officers caught up with the Chevelle and arrested the driver, Michael Thomas.
Officer Washington testified he asked Thomas who the driver of the other car was, and, over defendant’s hearsay objection, testified Thomas said it was defendant. Washington then searched for the Plymouth and found it outside a tavern. He found defendant inside the tavern and arrested him for drag racing. On cross-examination Washington stated he could not identify defendant from the view he had while in pursuit.
At the close of the State’s case in chief defendant’s motion to dismiss thе charge contending the officer’s identification was based on hearsay and the State had failed to prove that essential еlement of the offense charged, was overruled.
Defendant took the stand in his own defense and testified on the evening in question he and Miсhael Thomas left work in separate cars and, while traveling on Stur-devant Street, he passed Thomas on the left side of the street. Dеfendant denied he was speeding. At the close of all the evidence defendant renewed his motion to dismiss, which was overruled.
Defendаnt seeks reversal on two related grounds. First, he contends trial court erred in admitting, over his hearsay objection, testimony of Officer Washingtоn that Michael Thomas identified defendant as driver of the Plymouth. Secondly, he asserts the trial court erred in overruling his motion to dismiss made at the close of the State’s case and renewed at close of all evidence, claiming the State failed to prove he wаs the operator of the Plymouth.
I. The propriety of the trial court’s ruling on defendant’s hearsay objection, which ruling was based on the State’s assertion the res gestae exception applied, need not be resolved.
The only matter objected to in Washington’s alleged hearsay testimony was defendant’s identity as the operator of the Plymouth. This was the State’s only evidence establishing this essential element of the crime charged. Assuming arguendo the
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testimony was hearsay and was not properly admissible under the claimed exceрtion, then obviously the trial court erred in overruling defendant’s objection. Where error appears prejudice is assumed unless the contrary is affirmatively established. State v. Mattingly, Iowa,
However, error in the admission of evidence is not prejudicial where substantially the sаme evidence is in the record without objection. State v. McCollom,
“The erroneous admission of evidence that may be justification for reversal is neutralized and cured when the opposite party subsequently admits the fact erroneously proved or shows it by his own evidence.” 5 Am.Jur.2d, Appeal and Errоr, section 806, page 248. See also, 5A C.J.S. Appeal and Error § 1724.
When defendant took the stand and identified himself as the driver of the car passing the Chevelle driven by Thomas, any error which may have resulted from admission of Officer Washington’s testimony identifying defendant was rendered nonprejudicial.
II. Turning to defendant’s claim trial court erred in overruling his motion to dismiss challenging the sufficiency of the evidence, it should be noted a motion to dismiss in a nonjury, trial is the equivalent of a motion for directed verdict in a jury trial. State v. Stodola,
Error cannot be predicated оn failure to grant defendant’s motion for dismissal made at close of State’s evidence. State v. House, Iowa,
The principles guiding the court’s review of this issue are well defined.
“On an appeal challenging the sufficiency of the еvidence we view the evidence in the light most favorable to the State and accept all reasonable inferences tеnding to support the verdict. If there is any substantial evidence reasonably supporting the charge the cause should be submitted to the jury. It is necessary to consider only that evidence which would support the verdict. (Citations).” State v. White, Iowa,223 N.W.2d 163 , 164, and citations.
“Drag racing” is defined in Code seсtion 321.284 as follows: “ * * * one or more persons competing in speed in excess of the applicable speed limit in vehicles on the public streets or highways.” See State v. Yolk, Iowa,
Officer Washington saw two automobiles, a Chevelle and a Plymouth, proceeding north on Sturdevant Street. He heard a loud squeal of tires and saw the vehicles prоceeding side by side, accelerating on the wet and slippery pavement at a high rate of speed believed to be in exсess of the limit. This testimony provided substantial evidence from which trial court could have found the operators of each automоbile had committed the offense of drag racing as defined in Code section 321.-284.
Defendant’s own testimonial admission of his identity as the Plymouth’s oрerator could also be properly considered
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in passing on his motion to dismiss. State v. Niccum, Iowa,
Admission of the hearsay testimony was arguably erroneous, but any error was cured when defendant took the stand and testified to the sаme fact established by the hearsay. Substantial evidence was introduced to support the charge, and trial court properly overruled defendant’s motion for dismissal.
Affirmed.