Fortune v. State

• Decision Date: 11 March 1955
• Citation: 197 Tenn. 691,1 McCanless 691,277 S.W.2d 381
• Parties: Forrest W. FORTUNE v. STATE of Tennessee. 1 McCanless 691, 197 Tenn. 691, 277 S.W.2d 381
• Court: Tennessee Supreme Court

Page 381

277 S.W.2d 381

Forrest W. FORTUNE v. STATE of Tennessee.

1 McCanless 691, 197 Tenn. 691, 277 S.W.2d 381

Supreme Court of Tennessee.

March 11, 1955.

James M. Manire and James R. Winchester, Memphis, for plaintiff in error.

Knox Bigham, Asst. Atty. Gen., for the State.

BURNETT, Justice.

Fortune was indicated for the second degree murder of one Will Burrow and was convicted of involuntary manslaughter, with a prison sentence of not more than 3 years. It is from this conviction that the present appeal comes.

The prosecution grew out of an automobile accident which occurred about 6:00 o'clock on Highway 72, one and a half miles west of Collierville. The deceased was riding in an automobile driven by one Nolan. Nolan's automobile was traveling west on his right side of the highway at about 30 miles per hour. Fortune was driving his car in the same direction as that in which Nolan was going at a speed estimated from forty to forty-five miles per hour. Fortune drove his car into the rear of the Nolan car, knocking it approximately three hundred feet off the highway into a muddy field, and resulted in the death of Will Burrow. At the point where the accident happened the highway was straight and level with good visibility in either direction from the point of the accident of approximately 4/10 of a mile. The police officer who happened along just a few moments after the accident happened testified that he could detect a strong odor of alcohol on Fortune's breath. There were no walking or talking or other tests of the kind made for sobriety. The plaintiff in error was given a sobriety test by a technician at the police department in the City of Memphis by the use of a drunkometer machine which according to his testimony showed .225 alcohol concentration in Fortune's blood.

The plaintiff in error admitted that he was the driver of the car at the time of this unfortunate accident but insisted that he was not under the influence of an intoxicant. He admitted that he had drunk six bottles of beer from 11:30 in the morning until 6:00 o'clock that night, or the time of the accident. One other officer stated that the plaintiff in error told him that he had 9 bottles of beer. The plaintiff in error stated that he pulled out to pass the Nolan car and that when he did so the lights of the approaching traffic blinded him and when he pulled back into his own lane he was unable to see the Nolan car because of this blindness. He insisted that this was the cause of the accident.

The prosecution is based on two theories: (1) that the plaintiff in error had consumed enough of an intoxicant to justify the jury in finding that what he had drunk had so affected him that he was guilty of an act malum in se and that thus his conviction was justified under the authority of Crosswy v. State, 157 Tenn. 363, 370, 8 S.W.2d 486 and Keller v. State, 155 Tenn. 633, 299 S.W. 803, 59 A.L.R. 685 and other cases, and (2) that the proof in this case shows that the plaintiff in error pulled out of his lane of traffic into the face of oncoming traffic and that such an act in itself was malum in se as has been held by this Court in Reed v. State, 172 Tenn. 73, 110 S.W.2d 308, and Smith v. State, 196 Tenn. 168, 264 S.W.2d 803.

On the first ground of liability the State has conceded that the evidence on the use of the drunkometer test was objectionable under this record and not subject to be considered by the jury, but the State says that it has shown that the plaintiff in error smelled strongly of an intoxicant. Of course the traditional method used over a period of years to establish drunkenness has been to place witnesses on the stand who smelled the breath and observed the suspect's appearance and conduct at about the time in question and have likewise tried to show that there were empty bottles, etc., around the scene of the accident. Obviously such proof is very credible but meets with much criticism and a scientific method has long been recognized as one that would be much better. In modern times of the high powered automobiles and the traffic on the roads if one does drive under the influence of an intoxicant it becomes indeed a very serious offense and thus it is necessary that this driver be eliminated from the road as much as possible. One, to drive a car, must have good judgment, his reflexes and vision must not be impaired by alcohol and if these things are impaired then they make this driver highly dangerous. To meet these objections to the establishment of drunkenness as indicated here when you merely have the smell of the breath, walking, etc., there have been several instruments and tests established to prove intoxication. One of these tests is the drunkometer test which was used in the instant case. This test (chemical test) is made by one qualified to do so taking a small specimen of the blood, saliva, urine or other body fluid of the accused, or a bag full of his breath. The concentration of alcohol in the body fluids or breath may be measured, and through given ratios the concentration of alcohol in the brain may then be scientifically established. See People v. Kovacik, 205 Misc. 275, 128 N.Y.S.2d 492, where an excellent and thorough discussion and description of the drunkometer, its purposes and accomplishments and means of offering its tests in evidence are fully, ably and thoroughly discussed.

This State seeing the need of some such scientific test and fearful that the tests might not be admissible in evidence, has passed a general act, Public Acts of 1953, Chapter 202, which establishes a rebuttable presumption of guilt if the blood of the accused is found to contain .15 per cent (by weight) of alcohol. This statute, Chapter 202 of the Public Acts of 1953, at least by implication, makes the finding of this .15 per cent by weight of alcohol in the blood as shown by chemical tests of the blood, urine or breath, a prerequisite to the raising of the presumption of intoxication. See excellent notes on subject, Tennessee Law Review, Vol. 23, No. 2, page 179. The Act makes this presumption non-conclusive but a rebuttable presumption and it expressly provides that other evidence may be introduced bearing upon the question of whether or not the defendant was under the influence of an intoxicant within the prohibition of this Act. We think that what the Legislature meant by this presumption was that when it was shown by this scientific test that the accused had more than the .15 per cent of alcohol in his blood that then there was a prima facie case against the accused established which the accused might rebut by introducing other evidence. Then when this is done the presumption created by the chemical or scientific test is to be considered by the jury and court along with other evidence introduced as to whether or not the accused is intoxicated.

As a whole the reported cases over the country hold that for these scientific test results to be introduced as evidence this evidence must come through professional experts to interpret these test results. See State v. Haner, 231 Iowa 348, 1 N.W.2d 91; Lawrence v. City of Los Angeles, 53 Cal.App.2d 6, 127 P.2d 931; People v. Tucker, 88 Cal.App.2d 333, 198 P.2d 941; State v. Koenig, 240 Iowa 592, 36 N.W.2d 765; State v. McQuilkin, 113 Utah 268, 193 P.2d 433; House v. State, 1950, 155 Tex.Cr.R. 275, 233 S.W.2d 862; Omohundro v. Arlington County, 194 Va. 773, 75 S.E.2d 496. This requirement of course will curtail the use of these...