*1 correctly applied RAWLINGS, court this rule to the facts spe- (concurring Justice in the bar. cially). respectfully I trial court’s submit findings Plaintiff’s second assignment IV. relative to negligence part of defend is the trial court holding erred ant support are accorded neither substantial upon driveway was traffic vehicular justified the record nor are aas did not controlled because the vehicles it support matter of position law. of this employees belong customers. Co, Penney see Smith v. 260 Iowa C. J. identity particular de using vehicle 794; Beyer City 149 N.W.2d Du driveway entirely lacking in fendant’s buque, 258 Iowa They only were gen record. referred to 416; Dimock, A.L.R.3d and Franzen v. milk, erally by McDonough witness as Co, Gould & 251 Iowa garbage delivery Their use trucks. On other hand the matter con- driveway ordinary was the and usual tributory negligence was determinable use. record does not disclose trial sitting trier of the facts. driveway using belonged vehicle my opinion finding its effect recov- under the direct control defendant. ery by plaintiff is barred because regard In this the facts here are different tributory negligence part on her finds sub- than those Franzen v. & Dimock Gould record, stantial Co, supra. assigned Plaintiff’s second er ror is merit. without I therefore concur the result. assignment V. Plaintiff’s third is the LeGRAND, BECKER and JJ, join in trial in finding ques- court erred ice special concurrence. tion was formed vehicular traffic and ice and snow melting originating premises. finding sup- defendant’s
ported by substantial evidence and bind- pointed us as out in Division I opinion. assign-
VI. Plaintiff’s fourth fifth ments problem of error an evidentiary raise Iowa, Appellee, STATE of concerning defendant’s affirmative defense plaintiff contributorially negligent Eugene McPHERSON, Otis Appellant. challenge the trial it findings court’s had been established. The trial court’s No. 53049. finding plaintiff’s prove failure al- her Supreme Court of Iowa. leged specifications sup- of negligence is ported by Nov. substantial evidence and bars recovery. unnecessary We therefore it find questions plaintiff’s decide raised assignments
last two of error. judgment rendered below must be
and is affirmed.
Affirmed. All concur except RAWLINGS, Justices LeGRAND, JJ,
BECKER who concur
specially. *2 Ralph Bellizzi and Richard A. Stick- J.
ler, Moines, appellant. Des for Turner, Atty. Gen., C. Larry Gen., Seckington, Atty. Asst. Ray A. Fenton, County Atty., appellee. for BECKER, Justice. charged by County
Defendant At- torney’s information with the crime of robbery aggravation, jury tried appeal assigns convicted. On several We affirm. errors.
I. alleges the court err ed failing to sustain defendant’s mo tion for a directed In reviewing verdict. assignment we consider the evidence light most favorable to State. Iowa, Kaster, State v. If there is substantial reasonably evidence tending charge, State’s jury should be submitted McClelland, Iowa, determination. tried the case theory guilty as an defendant was 688.1, aider and abettor. Section Code, 1966. following reflects the facts.
The evidence P.M., December Between 10:15 and 10:45 Grocery the E and H Store young Des Moines was robbed two men. was staffed the time store clerk, Bitting, and Don Sample, a Clarence 14-year-old helper. The robbers held gunpoint they unsuccessfully .two at while open register. Failing tried to cash one vide for him. Defendant testified the they containing took a sack officers told he was entitled to a law- $50 change register, left yer from under and if he money didn’t have front door into the provide and fired shot back lawyer State would for him. store left. Defendant contends this all the warn- *3 ing given said he asked for a to him. He Sample followed and them enter saw lawyer the get prelimi- but didn’t one until and white Chevrolet automobile which red nary hearing on December Sample esti- driven third man. was got he the car mated within six feet of proceeded question The officers de* to it. moving got which into was as the men He them fendant. told had been he lighted. area well He could see was companions night all shortly his after from wearing print the shirt similar driver was they 10:00 P.M. until were arrested. The ar- to when the shirt worn defendant driving officers were told of the men three Sample rested a later. could few hours city, pool bowling around playing the at identify not the There defendant as driver. alley and stopping filling at station to plates draped the license was cloth over headlight replaced. have a of the car. produced A the time of search at arrest substantially Bitting the Donald told nothing any significance. The State story identify did the shirt. same but any large had does claim defendant Simpson and Both men identified James amount cash at the time of arrest and Peterson, on co-defendants the James robbery gun not offered the used was formation, the the who as men entered in evidence. store. Defendant took the He testified police who stand. Sample immediately called the from description he the two co-defendants A was not with arrived within five minutes. midnight. 10:00 until He ad- police radio. about car broadcast on the P.M. was the telling police mitted he had been with the night, the 1:30 same about A.M. At night the other men that but said he didn’t at- Eikleberry, station service say he the all mean to had been with men tendant, in a red and replaced headlight night. he had seen men about He said the by defendant. driven Chevrolet white at a friend’s home. 9:30 P.M. mutual with defendant. Simpson and Peterson were the and the Defendant borrowed car three change de- bill with paid the $2.68 play pool at P.M. went to about 9:30 companions. each from manded cents pool says Defendant other left the two the change. The paid defendant Each man P.M., he remained hall 10:00 but at about the three each of estimated attendant car played pool 11:30 P.M. The until in his six five or dollars men had about parked be started was outside could place. took when this transaction hands key was because the switch without a if he attendant men asked station broken. he he said change but buy wanted to some enough. says hall about pool left the Defendant he 11:30, but his father’s house went out to and white stopped red police saw stop; driving he south he as was didn’t A.M. 2:30 Chevrolet about picked them defendants were the other two Simpson Peterson driving. was men midnight. The three at that up at about arrested men were passengers. The arrested. Defendant together until did not then told he was time and defendant He said headlight. buying he the new anything told officers, have to talk to change him, worth did held $5.00 and would said could from of that worth got and that attorney and if $3.00 right to an he had a companions gas. pro- would the State one afford couldn’t proof period Davis, we held the two-hour Except crucial P.M., story compliance with the federal Miranda defendant’s 10:00 12:00 from justify trial from that mandates substantially different sufficient is not stand, ruling.1 court’s witness story His the State. quite different hours, is those two requested III. Defendant an in say received story police from struction which would have submitted robbery. night of the question of voluntariness admissions police addition the statement jury. procedure would have detailed evidence heretofore circumstantial been consistent with what is as the known need jury verdict. We tends Massachusetts rule for determination point. The trial not belabor confessions; voluntariness of admissions or verdict. it refused direct a when correct e., judge i. determines the admission *4 945, Dwinells, N.W. Iowa 146 259 State v. voluntary again ques was submits the
2d 231.
jury.
Holland,
tion
v.
258
to
State
the
86,
206,
adopted
138
we
the
N.W.2d
contends his con
II.
rule;
e., where
judge passes
orthodox
i.
the
right against self-incrimination
stitutional
of the
the
voluntariness
statements
the statements
was
admission of
violated
determination is final. Both methods are
police at
time of arrest.
made to
the
approved by
Denno,
v.
378 U.S.
Jackson
says
warning given by the inter
a mere
368,
1774,
908,
84
12 L.Ed.2d
1 A.L.R.
S.Ct.
show a
rogators is not alone sufficient to
rejecting
3d
did not err in
1205.
court
intelligent waiver
voluntary,
and
knowing
requested
the
instruction.
silent,
Miranda
right
remain
citing
1602,
Arizona,
objects
giving
IV. Defendant also
436, 86
v.
384
8.
and
instructions
and We have
694,
A.L.R.3d 974
16 L.Ed.2d
433,
and
California,
sidered all
instructions as
S.
whole
Crooker v.
assign-
find no
error under the
1287,2
reversible
Ct.
presented
ex-
ments
to us. We decline to
defend-
has held
This
contra
analysis of
opinion
this
detailed
tend
McClelland,
v.
ant’s contention. State
various objections.
Mullaney
Iowa,
quotes
189, 195
Md.App.
State,
246 A.2d
v.
assigns
V. Defendant
misconduct
“
* * Despite the fact
approval:
with
county
argument
in final
the assistant
express
testimony
show an
does
attorney.
arguments were used to
Two
silent
remain
appellant’s
objects.
which defendant
totality
counsel,
we
and
hold
First,
discussing
county attorney,
facts
in
attendant
circumstances—the
evidence,
jury
put
them-
show
invited the
implicitly
such
the case—are
position
re-
of the witnesses
voluntarily and
selves
appellant
about which
when made his
of the events
linquished
these
time
”
holding
testifying.
Our condemnation of
incriminating admissions.’
in
dam-
argument
discussing
rule”
holding
“golden
in State
is consistent
&
Rock Island
ages,
Chicago,
There
Russell v.
Iowa,
Davis,
664, N.W.
in Pacific
249 Iowa
Co.,
failed
R. R.
claimed the State
defendant also
authority
is not
2d
70 A.L.R.2d
Miranda
prove the
its burden to
contending
argument
here constitutes
heard
but were
only given
were not
pro-
privilege
The reasons
reversible
error.
by defendant
understood
discussing damages
in
intelligently waived.
hibition
voluntarily and
expressed.
opinions
opinion
there
standard
dissented
this
1. The writer
controlling
McClelland,
laid down
those cases
both State
Davis, supra,
here.
and adheres
present
Kendall,
502, 503;
here. We are cited no
hold-
200 Iowa
cases
487, 203
N.W. 806.
argument
be reversible
error
in a criminal
note defense
case. We
properly in
VII. The court acted
over-
argument:
go
counsel’s
“I
into a lot
could
ruling
judgment
in arrest of
motions
your
of instances where this could occur in
judgment notwithstanding
for a
the verdict
* *
my
life and
life.
Counsel on
for such
and for a new trial. The reasons
permitted
both sides are
reasonable latitude
actions have
been discussed
fore-
all
argument.
say
final
We cannot
repeated.
going divisions and need not be
here.
latitude
abused
Affirmed.
complaint
VI. Defendant’s second
concur, except RAWLINGS
All Justices
argument
based
final
is in the realm of
MASON, JJ., who
dissent.
argument
invited
In final
defense
error.
argument
counsel closed his
as follows:
RAWLINGS,
(dissenting).
Justice
“Now,
you
tell
Mr. McKeon would
it,
it,
suspect
doesn’t
he knows
but that’s
reasoning
agree with the
Being unable to
your
right.
not his
That’s
to de
II
Division
conclusions reached
termine if
man
he knew
guilty
and if
respectfully
majority opinion, I
dissent.
it happened,
knowledge
if he
As
of it.
my
showing is here
opinion
no
humble
*5
you
stated,
I
in that one instruction I want
disclosing defendant
by the
made
State
keep harping
it,
very
to —I
it
is
on
but
waived those
constitutional
Knowingly
said,
important. As I
Mr.
will
McKeon
of
in Miranda v. State
enunciated
should,
perhaps
no doubt talk
it and
1602,
436,
L.
Arizona,
16
86 S.Ct.
384 U.S.
generate his
forget
can’t
but we can’t
694,
Ed.2d
“An
that the
express statement
individual
“The
warnings
the waiver
willing
necessary
opinion
is
to make
statement and does
with our
accordance
are,
attorney
closely
today
fully
want an
followed
absence
effec-
But
equivalent,
statement could constitute waiver.
tive
prerequisites
the ad-
presumed
missibility
simply
will not be
valid waiver
statement made
silence
accused
defendant. No distinction can be drawn
from
after
simply
given
between statements which are
con-
direct
fact
that a
ob-
eventually
fessions and statements which amount to
confession
fact
Carnley
tained. A statement we
of part
made
‘admissions’
or all of an offense.
Cochran,
privilege
369 U.S.
82 S.Ct.
against self-incrimination
applicable
protects
being
is
here:
(1962),
L.Ed.2d 70
com-
individual from
pelled
man-
himself in
incriminate
“
‘Presuming
from silent record
ner;
it
distinguish degrees
does not
show,
record
impermissible.
is
must
crimination.”
allegation
there must
an
evidence
show,
478-479,
id.,
which
an accused was offered
Then
86 S.Ct.
pertinent
and understand-
is found
counsel but
statement:
“
**
*
ing^
is
individual
rejected
Anything
the offer.
less
we
that when an
hold
supplied)
(Emphasis
taken into
or otherwise de-
custody
not waiver.’
prived
freedom the authorities
States,
v. United
also
“See
Glasser
subjected to
any significant way and is
(1942).
It is to me evident majority, bar, impermissibly concludes from
a silent record there knowing
intelligent defendant of his
under Miranda. Boykin of this view see also Alabama, U.S. 274; Burgett 23 L.Ed.2d v. State of
Texas, 109, 114-115, 88 S.Ct. 319;
261-262, Carnley
Cochran, 514-517, 82 S.Ct. U.S.
884, 889-890, 70; 8 L.Ed.2d and Johnson 458, 464-465, Zerbst, 58 S.Ct. 146 A.L.R. L.Ed. remand accordingly reverse and
I would
for a new trial.
MASON, J., joins in this dissent. HANNA, Pfeiffer,
Theodore Thomas William Hoyland Reasor, Kenneth them representatives selves and as of a class interests, Appellants, with like
Henry RATHJE; Hayes; Leroy Donald *7 Vogt; Taylor; Pallas; Leonard Iverson; Sally Gilbertson; Derwood Town Robins, Iowa; Town, L.T.D.; Park Unash, Unash, Ap Orval J. and Marcella pellees.
No. 53714.
Supreme Court of Iowa.
Nov.