McKay v. State, 24807

• Decision Date: 25 October 1950
• Docket Number: No. 24807,24807
• Citation: 235 S.W.2d 173,155 Tex.Crim. 416
• Parties: McKAY v. STATE.
• Court: Texas Court of Criminal Appeals

Page 173

235 S.W.2d 173

155 Tex.Crim. 416

McKAY v. STATE.

No. 24807.

Court of Criminal Appeals of Texas.

Oct. 25, 1950.

Rehearing Denied Jan. 10, 1951.

As Modified on Denial of Application for Leave to File

Second Motion for Rehearing Jan. 31, 1951.

Harry S. Pollard, Austin, for appellant.

Perry L. Jones, County Attorney, Austin, George P. Blackburn, State's Atty., of Austin, for the State.

BEAUCHAMP, Judge.

Appellant was assessed a penalty of $50.00 by a jury on a charge of driving a motor vehicle on the streets of the City of Austin while intoxicated.

That he drove the vehicle on the streets at the time alleged is admitted. Appellant stoutly denied his intoxication, but did admit drinking four bottles of beer in the late afternoon and evening before his arrest. When taken to the City Hall by the police he signed a written permission for the officers to test his breath for alcohol by an instrument known as the Harger Drunkometer.

The officers who arrested him and observed him after his arrest gave ample evidence to sustain the jury's verdict independent of the complained of evidence in this case. We may not speculate, however, that they would have done so independent of the breath test--which is the real controversy in the appeal of the case before this Court. It, therefore, becomes important to discuss this issue which, in our view of the entire record, is the only question requiring consideration in this opinion.

Appellant's Bill of Exception No. 4 complains of the evidence of Dr. E. Beerstecher, a research biochemist at the University of Texas. This evidence is stated in the bill, a part of which reads as follows: "I am familiar with the instrument known as the Harger breath test; I have been studying that between ten and eleven months. I feel that the machine is extremely reliable. It shows how much alcohol is in a person's blood at the time the test was taken. Based on my experience and the tests run by the Medical Association, if a man has .270 of alcohol in his body by weight, I would say he was intoxicated. * * *' On cross-examination such witness further testified: 'There is disagreement among scientists as to the accuracy of the (Harger) breath test. A chemical analysis of the blood itself shows what per cent or proportion of alcohol is in that blood sample. The Theory of the (Harger) breath test is that the breath indicates a per cent of saturation in the blood; it is a calculated proportion. This breath test is used in a number of states. From my work with this machine for some ten to eleven months, observing the officers making the tests, and from my knowledge as an expert on alcohol, my opinion is that the (Harger) machine is very reliable. This test is not used in many other states. There, again, is a difference of opinion between the states, just as there is a dispute among the scientists about its accuracy."

The chief contention made by appellant, based on the foregoing bill, is found in his first proposition on page two of his brief, as follows: 'It was error prejudicial to appellant for the trial court, over timely objections of appellant, to permit the State to introduce evidence of a Harger Drunkometer or alcohometer or alcohol breath-test of appellant and the results purportedly shown thereby, because the State did not prove that such breath-test and its result is generally accepted by scientists as accurately establishing the alcoholic content of a subject's blood to show whether he was under the influence of intoxicating liquor and the extent of his intoxication.'

As we interpret this contention there is no attack made on the manner in which the officers operated the machine in making the test. The objection is to the conclusion reached because Dr. Beerstecher, after qualifying as an expert witness, stated that there was a difference of opinion among scientists as to its accuracy. Neither do we find any controversy raised by the bill which contends that, if the machine be accurate and if the blood content actually contained .270 per cent by weight, the scientific conclusion stated by Dr. Beerstecher as to the intoxicated condition of accused is not supported by other scientists. There would probably be no ground for such contention.

The position that it is incumbent upon the State in the trial of the case to prove that the test is scientifically accepted may or may not be correct, depending upon the degree to which the fact is established by scientific research. This Court may recognize generally accepted scientific conclusions, even though there should be some who disagree with them. In all probability a scientist may be found who will disagree with practically every generally accepted scientific theory. We will take judicial knowledge of the scientific fact that the earth is round. At the same time, we know there are still individuals who claim to be scientists who have other theories, even to the extent of holding that instead of living on the outer surface of a globe we live within a globe, and that there are within it sun, moon, stars and all the heavenly bodies which we observe. We would have no trouble in disagreeing with such theory, but it does not destroy the fact that there are others who have a different view. The opinion of such others by no means bars the evidence of a scientific truth before a jury, nor would it preclude the courts from taking judicial knowledge of the truth of it.

Northwestern University, of Evanston, Illinois, has within the present year, 1950, published a work from which we quote: 'The prosecution need no longer rely solely upon * * * objective symptoms. Scientific methods have been developed for determining the alcoholic concentration in the blood by the chemical analysis of body substances, i. e., blood, urine, breath, saliva, or spinal fluid. Such analyses will determine exactly the extent to which a suspect is 'under the influence of intoxicating liquor.' The evidence of the results of such chemical analyses may be used to supplement the evidence obtained from observation of the accused. Medical science, through years of research and experimentation, has established that it is not the amount of alcohol consumed by a person that affects his driving ability but the amount of alcohol absorbed into his blood, and thus circulated to the brain, that affects his nerves and, correspondingly, his mental and physical faculties.'

We...