State v. Smith

198 Iowa 982 | Iowa | 1924

Faville, J.

— The record in the case discloses that, on Sunday -morning, July 22, 1923, appellant and one Sloan started from appellant’s place, in Grinnell, in an automobile, taking with them three small children of appellant’s. short time thereafter, the automobile was discovered in a ditch by the side of the road, southwest of Grinnell. A milkman who came along with an automobile pulled appellant’s car out of the ditch, and left the same standing diagonally across the road. He took the three children to town with him, leaving appellant and Sloan with the automobile. Later on, appellant and Sloan were found in the automobile, appellant sitting; at the steering wheel, and both parties in a drunken stupor. It is appellant’s contention that, after the milkman had gone to town with appellant’s children, he and Sloan purchased some liquor from a bootlegger who came along, and that they thereafter became intoxicated, and that appellant at no time operated the automobile while in an intoxicated condition. There is evidence tending to show that, at the time the .automobile was-first discovered in the ditch by the side of the road, appellant was intoxicated. There is also evidence tending to show that appellant and Sloan were intoxicated at the time they left appellant’s home with the automobile.

The most that can be said on the subject of the evidence as a whole is that it was in conflict upon the question as to whether or not appellant operated the automobile while in an intoxicated condition.- The record fails to show that appellant submitted any motion for a directed verdict, or any motion for a new trial in said cause, or that the sufficiency of the evidence to sustain a verdict of guilty was in any way challenged or raised in the lower court. In any event, a careful examination of the entire record convinces us that, the question as. to whether or not appellant was in an intoxicated condition at the time he operated the automobile in question was a question for the determination of the jury, and that the evidence on said question was in conflict, and that the verdict of the jury has ample support in the record. Under such a situation, we do not reverse.

Instruction No. 11 is challenged for the first time in this court. No exceptions were taken to any of the instructions, and, under such circumstances, any alleged error based thereon is deemed to have been waived. State v. Piernot, 167 Iowa 353; State v. Nott, 168 Iowa 617; State v. Cooper, 169 Iowa 571; State v. Stanton, 172 Iowa 477. In any event, the instruction does not appear to be erroneous.

We find no error in any of tlie matters urged by appellant that requires interference on our part, and the judgment of the district court must be — Affirmed.

Arthur, C. J., and Evans and Preston, JJ., concur.