Opinion
No. 40481.
April 22, 1957.
1. Drunkenness — evidence — insufficient to support conviction.
Evidence that defendant staggered and had odor of alcohol was insufficient to support conviction of drunkenness in a public place, in view of physician's unimpeached explanation that staggering was result of injuries.
2. Drunkenness — evidence — conviction contrary to great weight of evidence.
In prosecution for drunkenness in a public place, conviction was contrary to the great weight of the evidence.
Headnotes as approved by Lee, J.
APPEAL from the Circuit Court of Holmes County; ARTHUR JORDAN, Judge.
J.A. White, Durant, for appellant.
I. The arrest of the appellant was unlawful, it having been made by the Constable of Beat Two of Holmes County without a warrant for a misdemeanor not committed in the presence of the officer making such arrest. The transcript of the record from the Justice of the Peace Court is fatally defective and wholly insufficient to confer jurisdiction upon the Circuit Court. The affidavit fails to charge an offense under Section 2291, Mississippi Code of 1942, the statute under which it is purportedly drawn in that it fails to identify at least two persons as witnesses within whose presence the offense was, allegedly, committed.
Collation of authorities: Butler v. State, 135 Miss. 885, 101 So. 193; Galloway v. State, 144 Miss. 696, 110 So. 665; Harris v. State, 209 Miss. 183, 46 So.2d 194; Myers v. State, 158 Miss. 554, 130 So. 741; Pruitt v. State, 116 Miss. 33, 76 So. 761; Smith v. State, 228 Miss. 476, 87 So.2d 917; State v. Shanks, 88 Miss. 410, 40 So. 1005.
II. The evidence is insufficient to support the verdict of guilty and fails to establish appellant's guilt beyond a reasonable doubt. Sec. 2291, Code 1942; Bouvier's Law Dictionary, Drunkenness, p. 325.
III. There is a fatal variance between the affidavit and the proof.
IV. The Court erred in granting every instruction marked "Given" which was requested by the State.
V. The Court erred in refusing every instruction marked "Refused" which was requested by the defendant.
VI. The Court erred in overruling defendant's motion for new trial.
J.R. Griffin, Asst. Atty. Gen., Jackson, for appellee.
I. The Circuit Court had jurisdiction to try the cause. Kirk v. State, 222 Miss. 187, 75 So.2d 641; McCluney v. State, 162 Miss. 332, 138 So. 356; Warner v. State, 222 Miss. 322, 75 So.2d 741; Whittington v. State, 218 Miss. 631, 67 So.2d 515; Secs. 1987, 2291, 2449, Code 1942.
II. The evidence is sufficient to support the verdict of the jury. Kelly v. Yearwood, 204 Miss. 181, 37 So.2d 174; Scott v. Wagner, 141 A.L.R. 50; Thompson v. State, 123 Miss. 593, 121 So. 275.
III. The instructions were proper.
From his conviction in the circuit court of being drunk in the presence of two or more persons, in a public place, to-wit: Highway No. 51 in District No. 2 of Holmes County, Feddie Brown appealed.
The defendant and Mack Hunter were passengers in Lorenzo Gardner's car, returning from Goodman to Durant, when the car ran into a ditch or bar pit, killing Hunter and injuring the other two occupants.
Shortly thereafter, about 4 A.M., a patrolman, Alvin Malone, went to the scene of the accident. He noticed the defendant walking in the road from the traffic lights to the car, and said that he was not able to walk straight, but was staggering. He also smelled alcohol on the defendant. The officer did not arrest Brown at the time, but put him in an ambulance and sent him to the hospital in Durant. Audis Hathcock, the constable, after being called by Malone about six o'clock in the morning, went to the hospital where he found the defendant in the emergency room. Brown's eyes were red as he came out staggering. The officer said that he detected the odor of alcohol on him, and consequently took him to jail. Both officers testified that the defendant was drunk at the time they saw him.
Brown testified that, after the wreck, he went onto the highway to flag a car and get help; that, if he was staggering, it was because he was hurt and was in pain, while trying to do this; and that he was not drunk.
Dr. J.W. Howell testified that the marshal called him and said that Brown was in the hospital and was injured. The doctor went to the jail about 9:30 that morning, found Brown "pretty bunged up", and arranged his release so that he could examine him. From such examination, he ascertained that the defendant had sustained two broken ribs, an injured knee, and an injured right eye, and that he was suffering from such injuries. The eye was swollen and Brown could not walk straight. Consequently he did stagger as he walked. The doctor said that he was not intoxicated at that time, and did not appear to getting over that condition.
The injuries detailed by the doctor obviously were sufficient to interfere with locomotion and also prevent him from walking straight. (Hn 1) The opinions of the officers were based solely on Brown's staggering, or inability to walk straight, and the odor of alcohol on him. The testimony of the doctor clearly showed that Brown's injuries were such as to render him unable to walk straight and, for that reason, he did stagger. The correctness of the doctor's opinion is self-evident and eliminates the staggering as evidence of drunkenness. The jury, by its verdict, did not give due consideration to the doctor's reasonable and unimpeached explanation. (Hn 2) The conviction is contrary to the great weight of the evidence. This error was assigned in the appellant's motion for a new trial. The verdict should have been set aside and a new trial granted.
The other assignments of error are not of sufficient merit to require a response.
The cause is reversed and remanded for a new trial.
Reversed and remanded.
McGehee, C.J., and Arrington, Ethridge and Gillespie, JJ., concur.