Opinion
No. 38844.
October 26, 1953.
1. Criminal law — driving while intoxicated — instruction — intoxicated to extent that driving created danger on highway — refusal not error.
In prosecution for operating motor vehicle while under influence of intoxicating liquor, refusal to instruct jury for defendant that, before it could convict, it must believe beyond every reasonable doubt that defendant was at the time under influence of intoxicating liquor to extent that his driving of automobile created a situation of danger on highway was not error.
2. Criminal law — driving while intoxicated — instruction — reasonable doubt.
Instruction for prosecution defining reasonable doubt, though improper as tending to unduly burden accused, was not prejudicial in view of other instructions.
3. Criminal law — driving while intoxicated — arrest — legal cause for — evidence obtained at time of.
Where police officer had seen defendant drunk at defendant's home and a short time later saw defendant driving automobile and attempted to arrest defendant when defendant stopped at stoplight, officer had legal cause to arrest or attempt to arrest defendant for misdemeanor being committed in his presence, and testimony of officer that defendant was intoxicated at the time of the attempted arrest was competent.
4. Criminal law — driving while intoxicated — evidence — observations and events closely connected in time.
In prosecution for operating motor vehicle while under influence of intoxicating liquor, prosecution witnesses' observations of defendant in an intoxicated condition at his home a short time before, and after he was seen driving his automobile in such condition on city streets, such observations were so closely connected in time that all must be considered together as competent and probative of defendant's condition at time he was driving automobile.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Copiah County; TOM P. BRADY, Judge.
Arrington Arrington, Hazlehurst, for appellant.
I. Under the established facts of this case it was error to refuse instruction requested by the appellant, which instruction defined "under the influence of intoxicating liquor"; the refusal of said instruction allowing the case to go to the jury under instructions which compelled the jury to convict if they believed that the appellant had consumed a small quantity of liquor — even though they also believed that he was quite sober and a competent driver at the time in question. Ball v. State, 39 So.2d 159; State v. Carroll, 226 N.C. 237, 37 S.E.2d 688; State v. Raines, 333 Mo. 538, 52 S.W.2d 727; State v. Storrs, 105 Vt. 180, 153 A. 560; Hasten v. State, 36 Ariz. 427, 280 P. 670; People v. Weaver, 188 App. Div. (N.Y.) 395, 177 N.Y.S. 71; Alexander's Mississippi Jury Instructions, Vol. 1, p. 702; Sec. 8174, Code 1942; Williams v. State, 161 Miss. 406, 137 So. 106; Cutshall v. State, 191 Miss. 764, 4 So.2d 289.
II. The court erred in granting the City of Crystal Springs instruction Number Two which undertook to define reasonable doubt in language repeatedly condemned by the Mississippi Supreme Court. Sykes v. City of Crystal Springs, 61 So.2d 387; Davis v. State, 170 Miss. 78, 158 So. 304.
III. The lower court erred in not excluding the testimony of Carlos Ervin as to the condition of appellant at the intersection of Georgetown Street and East Railroad Avenue, all of said information having been obtained subsequent to his unlawful attempt to detain the appellant without authority of law. Robertson v. State, 184 Tenn. 277, 198 S.W.2d 633; Great Atlantic Pacific Tea Co. v. Smith, 281 Ky. 583, 136 S.W.2d 759; Rhodes v. Jordan, (La. App.), 157 So. 811; Harris v. Terminal R. Ass'n of St. Louis, 203 Mo. App. 324, 218 S.W. 686; People v. Esposito, 118 Misc. (N.Y.) 867, 194 N.Y.S. 326; Turney v. Rhodes, 42 Ga. App. 104, 155 S.E. 112; Pratt v. Gross, 263 Ky. 521, 82 S.W.2d 788; Great Atlantic Pacific Tea Co. v. Billups, 253 Ky. 126, 69 S.W.2d 5; Gause v. State, 34 So.2d 729.
IV. The verdict of the jury at the trial below was not supported by the evidence and is against the overwhelming weight of the competent evidence.
John E. Stone, Assistant Attorney General, Jackson, for appellee.
I. Refusal of appellant's instruction did not constitute error. Ball v. State, 203 Miss. 521, 36 So.2d 159; Sec. 8174; Code 1942; Holifield v. State, 215 Miss. 564, 61 So.2d 385; Butler v. State, 177 Miss. 91, 170 So. 148; Murphy v. State, 89 Miss. 827, 830, 42 So.2d 877; Ellis v. Ellis, 160 Miss. 345, 360, 134 So. 150.
II. The granting of instruction Number Two for the City of Crystal Springs did not constitute reversible error. Rule 11, Supreme Court of Mississippi.
III. The testimony of Carlos Ervin was competent. 4 Words Phrases, p. 239; State v. Lightcap, 181 Miss. 893, 899, 179 So. 880; Gause v. State, 203 Miss. 377, 34 So.2d 729.
IV. The verdict of the jury is amply supported by the evidence.
This is an appeal from a conviction of the offense of operating a motor vehicle while under the influence of intoxicating liquor.
The facts on behalf of the prosecution may be briefly summarized as follows: On the date of the alleged offense, the wife of appellant, who had left their home a few days before, returned to Crystal Springs, for the purpose of obtaining some of her personal property from their home. Her sister and sister-in-law were with her. At the request of appellant's wife, the city marshal and a police officer accompanied them to the house. There was testimony that while they were at appellant's home, from about 11:30 A.M. to noon, appellant was so drunk he could hardly stand up, and "would stagger out there" and throw his wife's clothing out of her truck. It was further testified that a short time thereafter, when appellant's wife was about to leave Crystal Springs, she requested the police officer who had been at appellant's home when she was there, to detain her husband while she got out of town. This occurred in the business section after she had left their home. About that time appellant drove up to a point nearby and stopped at a red light. This police officer, who had observed appellant at his home not long before, went out to the car and, according to his testimony, again saw that appellant was drunk. He thereupon attempted to remove appellant from his car and called on a by-stander for help. He did not succeed in removing appellant from the car and appellant drove away and returned to his home. This police officer then obtained a warrant for the arrest of appellant. He and the city marshal and another officer went to appellant's home and arrived there, according to the testimony of the marshal, about twenty minutes after they had been there the first time. It was testified that on this occasion, when they arrested appellant, he was drunk and "couldn't stand up."
In this situation several alleged errors are assigned. The first of these is that it was error to refuse appellant's request for an instruction in the form quoted and discussed in Ball v. State, 203 Miss. 521, 36 So.2d 159 and 797. The instruction referred to sets out that "the statute does not condemn every person who takes a drink of liquor and thereafter drives an automobile on a highway, but that before you can convict the defendant you must believe beyond every reasonable doubt that the defendant was at the time under the influence of intoxicating liquor to the extent that his driving the automobile created a situation of danger on the highway." (Hn 1) There was no error in refusing this instruction, because it would require that the defendant be under the influence of intoxicating liquor "to the extent that his driving the automobile created a situation of danger on the highway." This quoted language would lead the jury to believe that there must be some situation of actual danger at the time, which we think is not necessary. In the case at bar there was no apparent danger to anyone, and yet, if in fact the appellant was driving his car while under the influence of intoxicating liquor, he was in violation of the statute.
It is next argued by appellant that one of the instructions granted to the prosecution constituted reversible error. The instruction referred to is the same instruction which has been condemned in Jones v. State, 130 Miss. 703, 94 So. 851, Davis v. State, 170 Miss. 78, 154 So. 304, and Sykes v. City of Crystal Springs, Miss., 61 So.2d 387. In these cases, although the instruction was criticized because it tends by its language to unduly burden the accused, yet it was in each instance considered non-prejudicial because of other instructions on reasonable doubt and under the facts of these cases. (Hn 2) We have concluded that in the case at bar the granting of this instruction did not constitute reversible error, although we again withhold our approval of this particular instruction. Appellant was granted three instructions which adequately set forth the extent to which the jurors must be convinced of guilt before finding a verdict of guilty.
It is argued that the testimony of the police officer who attempted to remove appellant from his car at the stop light to the effect that appellant was then intoxicated should not have been admitted and considered because this officer arrested or attempted to arrest the appellant without legal cause. (Hn 3) But this officer had seen appellant drunk at his home just a short time before, and, therefore, when he saw appellant driving his car, he was a witness to a misdemeanor committed in his presence.
It is also contended that the verdict of the jury was against the great weight of the evidence and that it was erroneous to admit and consider testimony of the intoxication of appellant at his home at the time when he was arrested. We see no merit in these contentions. The facts as disclosed by the testimony adduced by the prosecution are that appellant was intoxicated at his home between 11:30 A.M. and noon, that a short time later, in the opinion of the police officer, he was drunk while driving on the streets and during the episode at the stop light, and that, about twenty minutes after the first observation of appellant at his home, he was found there in an intoxicated condition upon the occasion when he was arrested. (Hn 4) We think that these three occurrences were so closely connected in time that all must be considered together as competent and probative of the condition at the time when he was driving his car. As a result of what has been said, we conclude that this case should be affirmed.
Affirmed.
Roberds, P.J., and Lee, Kyle, and Ethridge, JJ., concur.