In State v. Myers, 207 Iowa 555, 556-557, 223 N.W. 166, 167 (1929), we reversed for failure to give such an instruction despite the fact no request had been made.Summary of this case from State v. Jochims
January 23, 1929.
MOTOR VEHICLES: Operation — Intoxicated Driver — Accomplice. 1 The owner of an automobile who causes another person to operate the car while such other person is intoxicated, because such other person is less drunk than the owner, becomes an accomplice in the offense of operating an automobile while intoxicated.
CRIMINAL LAW: Accomplices — Corroboration — Mandatory Duty to
Instruct. on its own motion, et seq.)
CRIMINAL LAW: New Trial — Misconduct in Argument — Waiver.
et seq.) Headnote 1:
Criminal Law: 16 C.J., § 1344, p. 671, n. 71; § 1369, p. 677, n. 61; § 2413, p. 999, n. 75; 17 C.J., § 3344, p. 79, n. 73. Motor Vehicles: 42 C.J., § 1270, p. 1323, n. 81.
Appeal from Jefferson District Court. — GEORGE W. DASHIELL, Judge.
Defendant was found guilty of operating a motor vehicle while intoxicated, and appeals. — Reversed.
Ralph H. Munro, for appellant.
John Fletcher, Attorney-general, and Neill Garrett, Assistant Attorney-general, for appellee.
I. Defendant contends that the State's witness Glotfelty, who testified to the alleged commission of the 1. MOTOR crime, was an accomplice, and that the court VEHICLES: should have charged the jury that a conviction operation: could not be had upon his testimony unless intoxicated corroborated. There was no instruction upon the driver: subject. Glotfelty was the owner of the car, and accomplice. was riding in it, while defendant was driving, at the time to which the indictment relates. According to Glotfelty's testimony, both were drinking, before and while they were riding in the car. Their common mission in driving the car at the time was to procure and drink liquor. They had a conversation as to which one was in the best condition to drive. Glotfelty testifies that defendant "said he was."
"Whoever while in an intoxicated condition operates a motor vehicle shall upon conviction be sentenced * * *" Code of 1927, Section 5027.
It is the operation of the motor vehicle while in an intoxicated condition that constitutes the offense. The State argues that such operation "is one purely personal to the person charged therewith * * * It is a crime the nature of which is individual, and is such that there could be no accomplice thereto."
Section 12895, Code of 1927, reads:
"The distinction between an accessory before the fact and a principal is abrogated, and all persons concerned in the commission of a public offense, whether they directly commit the act constituting the offense, or aid and abet its commission, though not present, must hereafter be indicted, tried, and punished as principals."
Even though only one person can be engaged in the physical operation of a motor vehicle at one time, and even though another may be incompetent in person to commit the crime, it is plain that such other, though not engaged in such physical act, may have caused or aided in the operation by the drunken person, and hence be liable to indictment therefor. State v. Comstock, 46 Iowa 265; State v. Rowe, 104 Iowa 323.
"The general rule for determining whether a witness is an accomplice or not is to determine whether he could have been indicted and convicted of the same crime." State v. Brundage, 200 Iowa 1394.
We have no doubt that Glotfelty, on his own testimony, could have been indicted and convicted of the offense here charged. State v. Farris, 189 Iowa 505. Glotfelty was undoubtedly an accomplice. Idem; 1 Words Phrases 75 et 2. CRIMINAL seq; 1 Idem (2d Ser.) 39; 16 Corpus Juris 130. LAW: There was corroborating evidence; but the court, accomplices: nevertheless, should have informed the jury of corrobo- the necessity of corroboration, under Section ration 13901, Code of 1927, even though request for mandatory such an instruction was not made. State v. duty to Carnagy, 106 Iowa 483; State v. instruct. James, 198 Iowa 976.
II. Misconduct of the prosecuting attorney in his argument to 3. CRIMINAL the jury is alleged. There are two or three LAW: new reasons for not sustaining this assignment of trial: error, one of which is that the only exception misconduct appearing in the record is by the State. — in argument: Reversed. waiver.
ALBERT, C.J., and EVANS, FAVILLE, KINDIG, and WAGNER, JJ., concur.