State v. Conklin , 204 Iowa 1131 ( 1927 )

I. Defendant assigns two errors only. These are predicated upon Instructions Nos. 5 and 8, respectively. No error is predicated upon the evidence, nor upon rulings admitting or rejecting testimony; none of the evidence being incorporated in the record here. Instruction No. 5 was as follows:

"The material facts which the State must prove beyond a reasonable doubt are the following, to wit: (1) That the defendant was driving an automobile at the time and place alleged. (2) That, while driving the said 1. CRIMINAL automobile at the said time and place, he was LAW: intoxicated. (3) That the said place was in instruc- Humboldt County, Iowa. If the State has proven tions: each and every one of the said facts beyond a unnecessary reasonable doubt, you will find the defendant venue. guilty. But if the State has failed to prove each and every one of said facts beyond a reasonable doubt, you should find the defendant not guilty."

The complaint against this instruction is that it omitted a certain specification contained in the indictment. The indictment charged that the defendant "did while intoxicated operate an automobile upon a public highway in Humboldt County." Instruction No. 5 omitted reference to a "public highway." This omission furnishes the ground of complaint. The argument is that, if the indictment be unnecessarily specific, yet its specifications must, nevertheless, be proved.

Without debate as to the legal proposition thus put forward, it is sufficient to say that the instruction did require the State to prove that the defendant was driving an automobile "at the time and place alleged." The "place alleged" was defined in the indictment as "a public highway in Humboldt County, Iowa." It was further defined by Instruction No. 1 by incorporating therein that part of the indictment. It was further defined in Instruction No. 4 as follows:

"It is the contention of the State that, on the evening of February 19, 1926, the defendant was driving an automobile on a public highway about a mile west of Livermore, in Humboldt County, Iowa."

It was not, therefore, necessary that the specification be repeated in Instruction No. 5. Such specification was in no manner contradicted by Instruction No. 5, but was wholly consistent therewith.

II. The defendant became a witness in his own behalf. In Instruction No. 8 1/2 complained of, the court 2. CRIMINAL instructed the jury that, in weighing the LAW: evidence of the defendant, they had a right to instruc- consider "his interest in the result of the tions: case, as affecting his credibility." The credibility abstract proposition thus stated is not of accused. challenged by appellant. His complaint is that he was "singled out" from all the other witnesses. Sufficient here to say that Instruction 11 applied to all the witnesses the same rule that had been applied to the defendant in Instruction No. 8 1/2. The defendant was "singled out" only in the sense that he was the only defendant under prosecution, and as such, was interested in the result of the case in a sense that could apply to no other witness. The point complained of is fully ruled against the appellant in our recent case of State v. Weber, 204 Iowa 137. Neither assignment of error can be sustained.

The judgment below is, accordingly, — Affirmed.

STEVENS, FAVILLE, KINDIG, and WAGNER, JJ., concur.