Opinion
No. 42124.
February 5, 1962.
1. Intoxicating liquors — evidence — results of intoximeter test — admissibility — absent objection, Supreme Court would not determine question.
In absence of objection to admission of intoximeter test testimony, whether testimony would be admissible over objection that motorist was being required to give testimony against himself would not be determined. Sec. 1617, Code 1942.
2. Intoxicating liquors — driving while under influence of — conviction sustained.
Evidence sustained conviction for driving while under influence of intoxicating liquors. Sec. 1617, Code 1942.
Headnotes as approved by McGehee, C.J.
APPEAL from the Circuit Court of Hinds County; LEON F. HENDRICK, J.
B. Galloway Austin, Earl Keyes, Jackson, for appellant.
I. The trial judge in the County Court of Hinds County, Mississippi, erred in entering the order overruling the motion for a new trial on the 3d day of April, 1961, for the reason that said trial court did not have jurisdiction to consider same.
II. The trial court erred in permitting the prosecuting attorney of the City of Jackson, in his cross-examination of the defendant, to bring out his driving record or records of any previous convictions of traffic violations.
III. The verdict of the jury was contrary to the overwhelming weight of the testimony.
IV. The trial court erred when the jury had returned after an objection was made by counsel for the defendant to the question on cross-examination asked by the prosecuting attorney, relative to his previous driving record, and that when the jury returned after having heard said question, the trial judge failed to instruct the jury to disregard the question and the inference made by the prosecuting attorney for the City of Jackson.
V. The trial court erred in overruling defendant's motion for a mistrial timely made after the prejudicial cross-examination concerning his previous driving record.
VI. The trial judge erred in permitting the prosecuting witness, Dr. Price, to testify in regard to intoximeter test taken on the defendant, for the reason that said testimony violated the constitutional rights of the defendant, and the Court owed a duty to give the defendant a fair and impartial trial, protecting his sacred constitutional rights, regardless of whether the prosecuting attorney objected thereto or not.
VII. The trial court erred in permitting the prosecuting attorney to state to the jury that the defendant would not have to serve time in jail, as said remark was highly prejudicial, untrue and improper, and was a ground for a mistrial.
VIII. The testimony of the prosecuting witness, Dr. Price, was so conflicting and prejudicial as to evince bias and prejudice on the part of said witness, and was highly prejudicial and improper in that it violated the constitutional rights of the defendant.
IX. The trial court erred in its overruling a motion for a new trial on the ground that counsel for the defendant has not timely filed his motion for a new trial, as provided by statute for motions for a new trial in the County Court of the State of Mississippi, in that said Court was apprised of the fact that counsel for the defendant had two deaths in his family during the ten-day period, and it has long been the custom of our courts in Mississippi to give liberal interpretation of procedural rules and permit counsel courtesies wherein there is a valid reason for a delay, which could not possibly harm the rights of either side.
Collation of authorities: Brooks v. State, 209 Miss. 150, 46 So.2d 94; Brown v. State, 297 U.S. 278, 80 L.Ed. 682, 58 S.Ct. 461; Carter v. State, 198 Miss. 523, 21 So.2d 404; Cofer v. State, 152 Miss. 761, 181 So. 613; Fisher v. State, 145 Miss. 116, 110 So. 161; Floyd v. State, 166 Miss. 15, 148 So. 226; Ford v. City City of Jackson, 153 Miss. 616, 121 So. 278; Fulton v. City of Philadelphia, 168 Miss. 30, 148 So. 146; Gause v. State, 203 Miss. 377, 34 So.2d 729; Lancaster v. State, 188 Miss. 374, 195 So. 320; Mattox v. State, 240 Miss. 544, 128 So.2d 368; Smith v. State, 240 Miss. 738, 128 So. 857; Gonzales, Vance, Helpern Umberger, Legal Medicine — Pathology and Toxicology.
J.A. Travis, Jr., Jackson, for appellee.
I. Testimony concerning the results of an intoximeter test, voluntarily taken by appellant, is admissible scientific evidence and its consideration as such does not violate the provisions of the Constitution of the State of Mississippi. Adams v. State, 202 Miss. 68, 30 So.2d 593; Bird v. State, 154 Miss. 493, 122 So. 539; Commonwealth v. Mummert, 183 Pa. Super. 638, 133 A.2d 301; Faulk v. State, 127 Miss. 894, 90 So.2d 481; Hinkefent v. State (Okla.). 267 P.2d 617; Kassner v. State, 161 Tex.Crim. 646, 279 S.W.2d 341; Leflore v. State, 197 Miss. 337, 22 So.2d 368; Leonard v. State, 161 Tex.Crim. R., 278 S.W.2d 313; Logan v. State (Okla.), 269 P.2d 380; Mattox v. State, 240 Miss. 544, 128 So.2d 368; Moore v. State, 138 Miss. 116, 103 So. 483; Novak v. District of Columbia, 49 A.2d 88; People v. Coppock, 216 Misc. 89, 133 N.Y.S.2d 174; People v. Miller, 357 Mich. 400, 98 N.W.2d 524; State v. Bailey, 184 Kan. 704, 339 P.2d 45; State v. Brady, 354 P.2d 811; State v. Duguid, 50 Ariz. 276, 72 P.2d 435; State v. Miller, 64 N.J. Super. 262, 165 A.2d 829; State v. Small, 233 Iowa 1280, 11 N.W.2d 377; State v. Roberts, 102 N.H. 414, 158 A.2d 458; Terry v. State, 342 S.W.2d 437; Wells v. State (Ind.), 158 N.E.2d 256; Secs. 14, 23, 26, Constitution 1890; Sec. 1617, Code 1942; Donigan, Chemical Test and Law, pp. 10, 18.
The appellant, Laither D. Gaughf, Jr., was prosecuted and convicted in the City Police Court of Jackson, Mississippi, of driving and operating an automobile while under the influence of intoxicating liquors. He appealed from this conviction to the County Court of the First Judicial District of Hinds County, Mississippi, where a trial de novo was had and the jury returned a verdict of "guilty as charged." The appellant was thereupon sentenced to thirty days in the county jail and to pay a fine of $100. From this conviction, he prosecuted an appeal to the Circuit Court of Hinds County, where his conviction was affirmed. It is from the affirmance of the case by the circuit court that the appellant prosecutes this appeal here.
In his order granting the appeal to this Court, the circuit judge, pointed out that under Section 1617, Miss. Code of 1942, Recompiled, the only question that would be involved on this appeal is the constitutional question as to whether or not it would be competent and proper to administer the intoximeter test to the appellant to determine whether or not he was driving his automobile "while under the influence of intoxicating liquors", and to allow the witnesses for the prosecution to testify concerning the results of the said intoximeter test.
The appellant was arrested on November 30, 1960, about 12:30 in the morning near the Lion Oil Service Station on the McDowell and Terry Roads in the City of Jackson for driving "while under the influence of intoxicating liquors." The proof showed that the attention of the officers was first attracted to the appellant's automobile by the noise of the muffler, and they thereupon "noticed him straddling the yellow line on up in the middle of McDowell Road and coming back toward the curb line; that they noticed that he was crossing the center line of the road to and fro;" and they followed him eight or ten blocks and then arrested him on the said charge. One of the officers testified that the appellant "was unsteady on his feet"; that he "talked with a thick tongue"; and that "he did not talk plain."
(Hn 1) The prosecution introduced as a witness Dr. Joseph B. Price, whose qualifications were well-established by the proof, and neither the testimony as to the fact of the appellant having taken the intoximeter test, which was freely and voluntarily taken, nor the testimony of Dr. Price as to the results of the test, was objected to by appellant on the ground that he was being required to give testimony against himself, nor on any other ground. Since this testimony was not objected to, we do not deem it necessary to decide the question of whether or not the giving of an intoximeter test would be admissible, if objected to; (Hn 2) and we think that the testimony as to the state of intoxication of appellant while driving on this occasion, taken as a whole, amply supports the verdict of conviction, and that the judgment appealed from must therefore be affirmed.
Affirmed.
Kyle, Ethridge, Gillespie and Jones, JJ., concur.