Daniels v. State

• Decision Date: 16 July 1927
• Docket Number: 4.
• Parties: DANIELS v. STATE.
• Court: Tennessee Supreme Court

296 S.W. 20

155 Tenn. 549

DANIELS v. STATE.

No. 4.

Supreme Court of Tennessee.

July 16, 1927

Error to Circuit Court, Lauderdale County; R. B. Baptist, Judge.

Manley Daniels was convicted of driving an automobile while intoxicated, and he brings error. Affirmed.

Craig & Durham, of Ripley, for plaintiff in error.

The Attorney General, for the State.

McKINNEY J.

The plaintiff in error has appealed from a conviction for driving an automobile while intoxicated. The trial court imposed upon him a fine of $35, a workhouse sentence of 30 days, and enjoined him from driving an automobile for 12 months.

Omitting the formal parts, the indictment charged that the plaintiff in error "unlawfully and willfully did drive and operate an automobile and motor-driven vehicle upon the public highways and roads of the state of Tennessee within the county of Lauderdale, he, the said Manley Daniels, being then and there drunk and in a drunken condition and under the influence of an intoxicant."

The first assignment of error is general in its nature and relates to matters which will be specifically dealt with hereafter.

The second and third assignments of error question the sufficiency of the evidence to sustain the verdict.

While the direct testimony as to intoxication is in conflict, when taken in connection with the conduct of the plaintiff in error, as detailed by numerous witnesses, the evidence does not preponderate against the verdict. Several witnesses testified that the plaintiff in error was drunk or drinking according to testimony offered by the state he ran his car into that of Sanford on a highway in daylight when there was ample room to pass; he engaged in loud and profane swearing was seen to drink out of a bottle; showed the witness Morris where he could obtain a drink from a bottle on the side of the road near the scene of the accident, which Morris testified smelled like some alcoholic drink; admitted that he drank whisky, but testified that he had drunk none that day. Plaintiff in error attempted to explain many of these matters, but not to the satisfaction of the jury. According to the witnesses for the state, he was driving in a reckless and dangerous manner just as an intoxicated person would do.

By the fourth assignment of error complaint is made as to the action of the court in permitting two witnesses to testify who had heard other testimony when the rule had been called for.

This is a matter within the discretion of the trial court, and the plaintiff in error was not prejudiced by his action in this particular.

By the fifth assignment of error it is insisted that the trial court erred in charging the jury that they should return a verdict of guilty if they found that plaintiff in error was driving an automobile along the public road while in "a partly drunken condition," the presentment containing no such allegation. The word "partly" does not appear in the presentment, but does appear in the act of 1917.

This is technical, and was in no sense prejudicial, as will be seen when the statutes involved are later discussed herein.

By the sixth assignment of error it is said that the court erred in permitting certain witnesses named to express their opinion that the plaintiff in error was drinking or drunk, instead of stating facts from which the jury might conclude that he was drunk, exception to such testimony being timely made.

In the main these witnesses detailed or described the conduct of the defendant, and then gave it as their opinion that he was either drunk or drinking.

The better practice is for the witnesses to describe the actions and conduct of the party, and then give their opinion as to whether or not he was intoxicated. But, under the great weight of authority, it is competent for a witness to give his opinion upon this matter without describing his actions and conduct. Bostwick v. State (Tenn.) 285 S.W. 50; 22 C.J. 599, and cases cited in note; 11 R. C. L. 608; 10 Ann. Cas. note p. 788.

In Edwards v. Worcester, 172 Mass. 104, 51 N.E. 447, it was said:

"The witnesses were rightly allowed to testify whether the plaintiff was intoxicated. It was not a matter of opinion, any more than questions of distance, size, color, weight, identity, age, and many other similar matters are."

In People v. Eastwood, 14 N.Y. 562, the Court of Appeals of New York said:

"A child * * * may answer whether a man (whom it has seen), was drunk or sober; it does not require science or opinion to answer the question, but observation merely; but the child could not, probably, describe the conduct of the man, so that, from its description, others could decide the question. Whether a person is drunk or sober, or how far he was affected by intoxication, is better determined by the direct answer of those who have seen him than by their description of his conduct."

With reference to the reason for the rule, the court, in Choice v. State, 31 Ga. 424, 467, said:

"Really, no other rule is practicable. If the witness must be confined to a simple narration of facts, how the person leered or grinned, how he winked his eyes or squinted, how he wagged his head, etc., all of which drunken men do, you shut out, not only the ordinary, but the best mode of obtaining truth."

In Holland v. Zollner, 102 Cal. 633, 36 P. 930, 37 P. 231, the court, in speaking of drunkenness, said:

"It is * * * easy of detection, and difficult of explanation."

In State v. Cather, 121 Iowa, 106, 109, 96 N.W. 722, the court said:

"The acts, conduct, and demeanor of a person under the influence of intoxicants cannot be accurately reproduced, and for this reason the question of intoxication is better determined from the direct answers of those who saw him, than from any description of his conduct."

Conversely, a witness may state that a person was sober. Duke v. State, 61 Tex. Cr. R. 441, 134 S.W. 705.

The seventh assignment of error is in the following language:

"The court erred in overruling the defendant's motion to quash and dismiss the indictment in this cause made before the beginning of the trial of the case, because no prosecutor was indorsed on the presentment or indictment and the grand jury had no inquisitorial powers under the act of 1925; because the presentment or indictment purported to be drawn under both the acts of 1917 and 1925 in the same count of the indictment; because the act of 1925 is unconstitutional and void under article 2, § 17 of the Constitution of Tennessee, and because no presentment or indictment could be certain and definite when drawn under both of the said acts, and this presentment or indictment was uncertain and indefinite."

This assignment of error necessitates an analysis of the two acts involved.

Section 1 of chapter 21 of the Acts of 1917 is as follows:

"That it shall be unlawful for any person or persons while under the influence of intoxicating liquor, or while in a drunken or partly drunken condition to drive or assist in driving any automobile, motor car, taxicab or motorcycle in the state of Tennessee."

By section 2 of said act the punishment is fixed at a fine of not less than $10 nor more than...