State v. Jones

• Decision Date: 01 November 1938
• Citation: 124 Conn. 664,2 A.2d 374
• Court: Connecticut Supreme Court
• Parties: STATE v. JONES.

2 A.2d 374

124 Conn. 664

STATE v. JONES.

Supreme Court of Errors of Connecticut.

November 1, 1938

Appeal from Court of Common Pleas, Litchfield County; Origen S Seymour, Judge.

Phelps C. Jones was charged by information with driving an automobile while under the influence of intoxicating liquor and with intoxication. The information was brought to the court of common pleas and tried to the court. Defendant was convicted, and he appeals.

No error.

In prosecution for operating automobile under the influence of intoxicating liquor, under statute penalizing operation of vehicle while under the influence of either intoxicating liquor or of any drug, and imposing more severe punishment for a second conviction, defendant could not object to the introduction of record of a previous conviction under the same statute, on ground that record did not show whether influence of liquor or influence of drugs was involved in the previous prosecution. Gen.St.1930, § 1585 (C.G.S.A. § 14-227).

Thomas J. Wall, of Torrington, for appellant.

J Howard Roberts, Pros. Atty., of Thomaston, for the State.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

AVERY Judge.

The accused was brought to trial on an information charging him in a first count, with intoxication on December 13th, 1936, in the town of Winchester; and, in a second count, with operating a motor vehicle while under the influence of intoxicating liquor; and, in a separate part of the information, he was charged with so operating as a second offense. After the trial, the accused was found guilty of intoxication and of operating a motor vehicle while so intoxicated; and thereafter after hearing was found guilty of so operating as a second offense. From the judgment imposed by the court the accused has appealed.

In his appeal, the accused has assigned error in the action of the court in finding certain facts, as it is claimed, without evidence and in refusing to find other facts claimed to have been established by the accused; but as the evidence is not made part of the record, we cannot consider any of the assignments of error addressed to the finding and must accept the same as made by the trial court. The accused has assigned as error that the subordinate facts found by the trial court do not support its conclusion of operating under the influence of liquor; this contention is not pursued in his brief, however, and we do not consider it. State v. Boucher, 119 Conn. 436, 437, 177 A. 383; Heslin v. Malone, 116 Conn. 471, 476, 165 A. 594.

The only assignments of error which are pursued in the brief relate to certain rulings upon evidence and the admissibility of the record of a former conviction. From the finding it appears that the accused on December 13th, 1936, at about 5 o'clock in the afternoon went to the restaurant in the Hotel Clifton at Winsted, remaining there until about ten minutes to seven. During that time he drank beer. At about quarter to seven he was requested by the proprietor of the hotel to drive George Barrett to his home in the latter's automobile, a distance of about three miles. At that time Barrett was intoxicated and unfit to drive. While driving toward Barrett's home between 7 and 7:15 in the evening a collision occurred between the car operated by the accused, proceeding northerly on North Main Street, with a car operated by Frederick Sigle in a southerly direction. John T. Dorsey of New Haven was riding with Sigle seated upon the front seat of the automobile. Just prior to the collision Sigle observed the Barrett car coming toward him and weaving from side to side. Immediately after the collision, Dorsey jumped out and went over to the Barrett car and found the defendant standing at the left front door which was opened. At that time Dorsey found that Jones was intoxicated. At the time of the collision a car was parked on the westerly side of the street in front of the house of Emil Carpenter, who immediately came out of his house, saw the accused standing near the car and testified that he considered the accused had been drinking. About seven or eight minutes later Sigle arrived at the Barrett car and found the accused intoxicated and that he smelled of liquor and was unsteady as he walked. About 7:35, police officers Heath and Lachat arrived at the scene and at that time the accused was intoxicated. Between 8 and 8:30, Dr. Donald C. Herman, a practicing physician, examined the accused, gave him certain tests and from these tests and from his examination found that the accused was under the influence of alcohol and that it would affect the way in which he would drive an automobile.

In the course of the trial, witnesses Sigle and Dorsey were asked whether they observed any change in the condition of the accused in regard to intoxicating liquor from the time they first saw him until he was examined by the doctor. Over the defendant's objection the witnesses were permitted to answer and testified in substance that the condition of the accused had changed for the better by that time. Dr. Herman was asked whether at the time he examined Jones the latter was so affected in his mental and physical processes as to be materially affected in the operation of a motor vehicle; and over objection answered that he was. Officer Heath, who testified that he had driven an automobile for eighteen years, was asked from his observation, whether the accused, when first seen by the officer by reason of his condition, was fit to operate an automobile, and over objection answered that he was not. Error is assigned by the accused in these rulings. The condition of intoxication and its common accompaniments are a matter of general knowledge. State v. Katz, 122 Conn. 439, 442, 189 A. 606. ‘ When * * * a subject is relevant to the matter in suit, and the lay witness has had the means and opportunity of acquiring knowledge of the subject through the use of his senses, and the impression or opinion is formed...