(dissenting).
As I cannot interpret the record below as the majority does, I respectfully dissent.
I. The transcript of evidence in district court comprises less than 17 pages. Upon reading it I am convinced the issue fought out below was legal, not factual, and the court erroneously adopted the State’s theory defendant was guilty because at the time and place in question he was not operating the siren on his emergency vehicle.
The City presented one witness, the Des Moines policeman whose direct and cross-examination covers two and one-half transcript pages. On direct the officer testified he stopped defendant’s vehicle while operating a “radar set-up,” defendant “stated he was on an emergency trip north of town, someone shooting ducks out of season,” the officer observed no red lights and heard no siren, and defendant said “he didn’t need them.” On cross-examination the officer testified there was no north or south-bound traffic other than defendant.
*580The State’s total cross-examination of defendant was one question:
“Q. Mr. Huff, at the time that you were going through the radar beam in the vicinity of the violation, did you. sound any audible signal by bell, siren or exhaust whistle? A. No.”
Almost three pages of transcript are devoted to the testimony and matters relating to the testimony of defendant’s last witness, a State conservation officer supervisor. When he was asked about instructions the commission gave to conservation officers concerning the use of sirens and red lights the State objected,
“MR. WYNN: Your honor, I am going to object. This is invading the province of the Court. The Court is going to judge the law.” (Emphasis supplied.)
It was at this point trial court observed, “The question is whether as a matter of law he was required to sound his siren if he was speeding,” followed by the comment, “and what his instructions were, if they instructed him not to sound his siren, that would not excuse a violation of the law.”
The supervisor was permitted to answer the question subject to the objection. There was no cross-examination. The evidence closed. The transcript discloses the following record was then made:
“(Arguments made to the Court by Counsel.)
THE COURT: Defendant is found guilty of the offense and he is fined $15.00 or three days in jail and judgment is entered in favor of the defendant [sic].
MR. DAVIS: Within what period of time, Your Honor, do we have to pay that? We may wish to appeal this matter quite frankly.
THE COURT: Yes, you might want to appeal it and put your bond up or whatever.
MR. DAVIS: Do you set the bond, Your Honor, and, if so, we would ask you that you indicate.
THE COURT: The bond will be $25.00. That is enough.
MR. WYNN: I have no objections, Your Honor.
THE COURT: Make the bond a $25.00 bond and you might want to appeal it and I think it might be a good idea. That is the way I read the law and I have to enforce it as I read it.
MR. DAVIS: For the purposes of a final determination, it will be under consideration.
THE COURT: Well, put up your bond and do what you think is best on it. I would welcome an appeal in this case, because I am very reluctant in my decision here, but I do feel that I have to follow the statute.
(Record closed.)” (Emphasis supplied.)
A trial judge who concluded a peace officer lied under oath about the nature of his trip would not be “very reluctant in * * [his] decision.” If he had resolved a factual issue against defendant he would not have stated “The question is whether as a matter of law he [defendant] was required to sound his siren if he was speeding.” Neither would the judge have any reason to state on the record “That is the way I read the law” and “I do feel that I have to follow the statute.”
If we are to indulge in presumptions we should presume a competent trial judge turning a decision on factual grounds would make a finding on those facts. See State v. Baker, 203 N.W.2d 795, 796 (Iowa 1973) (“This matter was tried to the court without a jury. The trial judge filed detailed findings of fact and conclusions of law”); compare rule 179(a), Rules of Civil Procedure (“The court trying an issue of fact without a jury * * * shall find the facts in writing * * *. No request for findings is necessary for purposes of review.”).
The total transcript plainly demonstrates the fighting issue was whether applicable statutes required defendant to activate his *581siren at the time and place in question, and in total context, clearly indicates trial court’s decision turned on an erroneous statutory interpretation, not a determination there was no emergency.
In the face of this record, the majority opinion, citing unrelated rules, creates a presumption trial court not only decided the law issue in favor of defendant, but the fact issue in favor of the State.
We are not reviewing an appeal in which defendant requests a review of the sufficiency of the evidence to support the verdict, on which point the majority inexplicably cites State v. Volk, 220 N.W.2d 607 (Iowa 1974). And as trial court made no fact findings, we are not confronted with an appeal logically invoking the concept that “findings of the trial court are to be broadly and liberally construed * * * to uphold * * * the judgment,” for which proposition the majority cites Farmers Insurance Group v. Merryweather, 214 N.W.2d 184 (Iowa 1974) and Frantz v. Knights of Columbus, 205 N.W.2d 705 (Iowa 1973), where in each instance trial court did file written findings.
The State does not assert, as does the majority opinion, that defendant failed to pin-point the trial court error, or that in rendering judgment trial court did not adopt the State’s interpretation of the emergency vehicle statutes. The State’s brief implicitly concedes trial court decided the law issue adversely to defendant. While its vitality has been whittled away, we have not yet so completely ignored the statutory direction that in consideration of a criminal appeal we are to “ * * * examine the record, without regard to technical errors or defects which do not affect the substantial rights of the parties, and render such judgment on the record as the law demands * * Section 793.18, The Code; see State v. Cusick, 248 Iowa 1168, 1170, 84 N.W.2d 554, 555 (1957).
We have long recognized a conclusive presumption the jury will follow the instructions of the court, State v. Rice, 56 Iowa 431, 433, 9 N.W. 343, 344 (1881), and we further presume prejudice where the court’s jury instructions are erroneous. Heldenbrand v. Executive Council of Iowa, 218 N.W.2d 628, 637 (Iowa 1974); State v. Miner, 213 Iowa 193,195, 238 N.W. 594, 595 (1931). In such event, we remand for new trial. Id.
Where the court proceeds under an erroneous view of the law in a case tried to the judge we should do no less. In this situation prejudice is also presumed where the decision does not disclose its absence:
“[Wjhile we are bound by the lower court’s findings of fact, if it applied erroneous rules of law in arriving at its decision, unless absence of prejudice appears therefrom, we must interfere. It is as though an erroneous instruction had been given to a jury.” Houlahan v. Brockmeier, 258 Iowa 1197, 1204, 141 N.W.2d 545, 549 (1966), quoting In Re Lundvall’s Estate, 242 Iowa 430, 435, 46 N.W.2d 535, 538 (1951).
We should remand for new trial under the proper statutory interpretation.
II. Of course the disposition I would make of this appeal requires resolution of the real issue in the case: whether defendant’s failure to give an emergency vehicle warning, by siren, at the time and place in question nullified any statutory speed law exemption he could have otherwise effectively invoked.
There is no dispute defendant was a peace officer. See §§ 107.13, 748.3(6), 748.4, 755.3, 755.4. Nor does State deny he was driving a State owned automobile equipped with emergency lights and siren and meeting the statutory definition of “authorized emergency vehicle.” Section 321.1(26), The Code.
But at this point some other statutory enactments come into play.
Section 321.230 provides:
“The provisions of this chapter [Motor Vehicles and Law of Road] applicable to the drivers of vehicles upon the highways *582shall apply to the drivers of all vehicles owned or operated by * * * the state, subject to such specific exceptions as are set forth in this chapter with reference to authorized emergency vehicles.”
Section 321.231 declares:
“The driver of any authorized emergency vehicle when responding to an emergency call upon approaching a red or stop signal or any stop sign shall slow down as necessary for safety but may proceed cautiously past such red or stop sign or signal. At other times drivers of authorized emergency vehicles shall stop in obedience to a stop sign or signal.”
Section 321.296 says:
“The speed limitations set forth in this chapter shall not apply to authorized emergency vehicles when responding to emergency calls and the drivers thereof sound audible signal by * * * siren * * *.» (Emp}jasjs supplied.)
Section 321.433 states:
“No vehicle shall be equipped with * * * any siren * * *, except as otherwise permitted in this section. * * Any authorized emergency vehicle may be equipped with a siren, * * * but such siren shall not be used except when such vehicle is operated in response to an emergency call * * * in which said * * * [event] the driver of such vehicle shall sound said siren when necessary to warn pedestrians and other drivers of the approach thereof.’’ (Emphasis supplied.)
It is at once evident Code §§ 321.231, 321.232, 321.296 and 321.433, quoted above, are in pari materia. They must therefore be construed together and harmonized if possible. See State v. Bartz, 224 N.W.2d 632, 635 (Iowa 1974); Baird v. Webster City, 256 Iowa 1097,1113-1114,130 N.W.2d 432, 441-442 (1964); 2A Sutherland, Statutory Construction, §§ 51.03, 51.05 (Sands 4th ed. 1973); 73 Am.Jur.2d, Statutes, §§ 187-189; 82 C.J.S. Statutes § 366.
At this juncture, recognition should be accorded to another established standard of statutory construction. R.C.P. 344(f)(13) says: “In construing statutes the courts search for the legislative intent as shown by what the legislature said, rather than what it should or might have said.”
To the same effect is this statement in City of Cedar Rapids v. Moses, 223 N.W.2d 263, 268 (Iowa 1974):
“The fundamental rule of statutory construction is to ascertain and, if possible, give effect to the intention or purpose of the legislature as shown by what the legislature has said, rather than what it should or might have said. A court may not, under the guise of construction, extend, enlarge or otherwise change the terms of a statute.”
See also Bergeson v. Pesch, 254 Iowa 223, 227-228, 117 N.W.2d 431, 433-434 (1962).
When, by Code § 321.438, quoted above, the General Assembly provided an emergency vehicle siren shall be sounded “when necessary to warn pedestrians and other drivers of the approach thereof” the manifest purpose was to protect against injury and damage to all persons then on, entering, or in proximity to the traveled highway. See Wetz v. Thorpe, 215 N.W.2d 350, 353-354 (Iowa 1974); Sundin v. Hughes, 107 Ill.App.2d 195, 202-203, 246 N.E.2d 100, 105 (1969); Oklahoma Ry. Co. v. Thomas, 63 Okl. 219, 220-221, 164 P. 120, 121-122 (1917).
Furthermore, the qualifying term “when necessary” found in § 321.433 must mean at such time or times as existing circumstances make the sounding of a siren essential for the protection of persons and property. See Hobby v. Hodges, 215 F.2d 754, 758-759 (10th Cir. 1954); cf. Christensen v. Kelley, 257 Iowa 1320, 1330-1331, 135 N.W.2d 510, 516 (1965).
In other words the legislature did not intend the sounding of a siren should be a condition precedent to exemption of an emergency vehicle operator for exceeding any given speed limit and § 321.296 cannot *583be so construed. Surely, if the General Assembly had intended to say the siren of an emergency vehicle must be sounded at all times while responding to an emergency call it could easily have so stated. But this it did not do and I cannot read such words or meaning into any statutory enactment here involved.
Reed v. Simpson, 189 P.2d 776 (Cal.Ct.App.1948), rev’d on other grounds, 32 Cal.2d 444, 196 P.2d 895 (1948), dealt with a statute which, like § 321.433 quoted supra, required the sounding of an emergency vehicle siren “as may be reasonably necessary.”
With regard thereto the court observed, 189 P.2d at 778-779:
“The legislature could not have intended that before he is to be exempt an operator of such emergency vehicle must in every situation proceed along a boulevard screeching to the terror of the inhabitants although the violator he pursues may be miles away and there is only one motorist on the highway of his route. The construction adopted by the trial court operates a forfeiture of the exemption as a matter of law, whereas it was intended that the officer might determine when it is ‘reasonably necessary.’ Therefore it was a fact to be determined by the jury whether the sounding of the siren was reasonably necessary. Isaacs v. City and County of San Francisco, 73 Cal. App.2d 621, 626, 167 P.2d 221.”
The trial transcript in the instant case reveals without dispute, there was no vehicular traffic on or anywhere near the roadway within the arrest vicinity. Furthermore, no evidence was presented which disclosed any pedestrian could have been directly or indirectly affected by presence of the emergency vehicle.
It is therefore evident that at the time and place here concerned defendant was not, under conditions then existing, required to have the siren on said emergency vehicle in operation as a condition to his immunity from arrest for speeding.
A contrary holding would mean that peace officers desiring to approach the scene of a reported crime without advance notice, or wishing to remain undetected while pursuing fleeing suspected or actual violators of the law would be unreasonably hampered in effecting an arrest.
Finally, I am satisfied Code § 321.433, as above construed, comports with §§ 321.230, 321.231, 321.296, all quoted supra.
Trial court was in error in adopting the State’s contention the emergency vehicle statutes required defendant to have his siren in operation whenever his vehicle exceeded the posted speed limit.
If the case were remanded trial court might find the facts as hypothecated in the majority’s de novo-type conclusions. But from uncontroverted evidence in this trial it seems apparent defendant’s vehicle was not radio-equipped. Defendant called home for messages and the police and highway patrol telephoned there concerning violations. Mrs. Huff’s delay in relaying the report to defendant was therefore understandable, and of course her judgment whether the report in question constituted an emergency was irrelevant. As majority indicates, it is the responding officer’s belief which, when the factual issues are ultimately reached, will become relevant. Nor is it surprising that a peace officer who thought he was operating within the emergency vehicle statutes would, when arrested by another peace officer, argue about the law while his summons was being written. But we have no indication trial court considered it necessary to reach any of these factors.
To me the record is clear trial, court’s disposition of this case welled out of an erroneous interpretation of the law. I would reverse and remand for new trial.
REES, REYNOLDSON and HARRIS, JJ., join in this dissent.