Greiner v. State, 25648

• Decision Date: 16 April 1952
• Docket Number: No. 25648,25648
• Citation: 157 Tex.Crim. 479,249 S.W.2d 601
• Parties: GREINER v. STATE.
• Court: Texas Court of Criminal Appeals

Page 601

249 S.W.2d 601

157 Tex.Crim. 479

GREINER v. STATE.

No. 25648.

Court of Criminal Appeals of Texas.

April 16, 1952.

Rehearing Denied May 28, 1952.

Second Motion for Rehearing Denied June 25, 1952.

Elbert R. Jandt, Seguin, Coke R. Stevenson, Junction, for appellant.

George P. Blackburn, State's Atty., of Austin, for the State.

GRAVES, Presiding Judge.

The conviction is for murder without malice under the provisions of Article 802c, Vernon's P.C., the jury having assessed the punishment at two years' confinement in the state penitentiary.

Appellant admittedly drove his Buick automobile into a wrecker operated by the deceased while deceased was engaged in raising and tying onto a car which had struck a deer. Both the wrecker and the damaged car were off the pavement on the appellant's right and were facing toward appellant. The collision occurred after midnight, and the wrecker's lights were on. The deceased was found dead under the wrecker immediately after the collision.

It is contended that the evidence is insufficient to support the jury's finding that appellant was intoxicated.

Appellant testified that he drank a highball early in the night before leaving Seguin. He admitted that he had an unopened fifth of whisky in his car, but denied any knowledge of a partly filled bottle being there. He testified that he did not drink any liquor after leaving Seguin and that he was not intoxicated.

Several witnesses testified that appellant, following the accident, was seated on the floor of his car where a half-filled bottle of whisky was later found. Another bottle of whisky with the seal intact was in a suitcase found in the car. It had apparently been broken as a result of the collision and the whisky had spilled.

Describing the appellant's condition, witnesses who were at the scene of the accident testified that he was 'staggering,' 'was out of the ordinary,' 'was in a kind of a daze like he was drunk or crazy,' 'something was wrong with him,' 'staggering and stumbling around,' 'you could tell something was wrong,' 'he did not act like a normal person, he would walk around with his hands in his pockets, and staggering around as if he couldn't keep his balance; asked repeatedly who was that woman over there.' A witness testified that appellant was either drunk or crazy; another that he was staggering around asking foolish questions; again, that he smelled of intoxicating liquor; that the witness saw two drunk men there, one of them being the appellant; that the woman injured, who was with the appellant, when asked what caused the accident, said: 'I tried to get the big son of a bitch to slow down before we got there.' This latter statement seems to be res gestae.

Mrs. Rotje, a witness, testified as follows:

'As to my telling the jury the way he acted as he walked around the scene of the accident, I never heard him say a word; he just staggered around there in the way, and I asked someone to get him out of my way; he did not act normal. I could small liquor or whisky about his person. As to whether that man was intoxicated at the time I saw him, by what I could see, smell the liquor and everything, there was certainly something wrong with him--staggering around, stumbling around, you could tell something was wrong.'

Some of the witnesses testified that they smelled liquor on his breath; others smelled liquor but did not say it was on appellant's breath.

Dr. Stevenson, who first examined appellant at the hospital, testifying as a witness for appellant, said that he smelled liquor on him but could not say whether the alcohol was taken by him before or after the accident.

None of the witnesses who observed appellant at the scene of the collision expressed the unqualified opinion that he was drunk; they each admitted that the conditions they observed might have been caused by shock or injuries he received from the collision.

Dr. Packard testified as to appellant's injuries and further testified that when he examined appellant he thought that he was under the influence of intoxicants and that he had been drinking; that the blood specimen taken under his supervision at 4:00 A.M., some four hours after the collision, showed .10% of alcohol in appellant's blood at that time which was not sufficient to show that he was then intoxicated.

Expert witnesses testified that .15% was the accepted standard to show intoxication and that normally a person would eliminate alcohol from the blood at the rate of .02% per hour from the time he last took alcohol into his system.

The deduction drawn from this expert testimony by the State is that at the time of the collision appellant had .18% of alcohol in his blood, which would render him intoxicated.

The sole objection to the evidence concerning the blood test was that the specimen had been taken without appellant's consent. There was conflicting evidence on the question of consent to take the test which the jury resolved against the appellant.

We are, therefore, not here concerned with the admissibility of the evidence but, rather, must determine whether the same constituted any evidence upon which the jury might base their verdict.

Attention is directed to our holding in McKay v. State, Tex.Cr.App., 235 S.W.2d 173, 175, wherein the evidence of the breath test was questioned. We there said:

'We are not holding * * * that the foregoing (evidence as to the accuracy of the test) is established as a scientific fact.' 'Our conclusion is this the evidence is admissible * * * for whatever it is worth * * *.'

That is, we said that even though the test had not received the approval of the Legislature or the courts as to its scientific accuracy, still evidence of the results of the test and its accuracy might be considered by the jury, along with other evidence, in reaching their verdict.

Appellant offered testimony of other witnesses to the effect that Dr. Packard, after learning the result of the blood test, stated that appellant was not intoxicated.

In passing upon the sufficiency of the evidence to sustain the verdict of the jury, it is our duty to view the evidence in the light most favorable to the State. See Hankins v. State, 140 Tex.Cr.R. 520, 146 S.W.2d 195, and cases cited in Tex. Digest, Vol. 13-A, under k1144(13), pages 324-328.

Applying this rule, we are unable to agree that the jury's finding that appellant was under the influence of intoxicating liquor is without support in the evidence.

We also overrule the contention that the State failed to prove that the deceased died as a result of injuries sustained as a result of the accident.

Reverend Sweet, whose damaged car was being picked up by the wrecker, testified:

'The lights shone so I could see Mr. Strube underneath the wrecker, and I thought it had just knocked him down, and I started to move him, and I could see he was hurt and didn't move him, and took hold of his pulse, and he died in my arms in two minutes.'

On cross-examination, this witness testified:

'After the impact, my first impulse was to look after the safety of my own wife and child; I found they were not seriously injured. I next went to Mr. Strube's side of the car, where I had last seen him; then I discovered Mr. Strube was very seriously injured.'

There are several exceptions to the indictment. It is contended that the indictment is insufficient because it appears to have been returned in the District Court for Kimble County, rather than in the District Court of the 112th Judicial District of Texas in and for Kimble County.

This court will take judicial knowledge of the apportionment statute, Art. 199, R.C.S., Vernon's Ann.Civ.St. art. 199, under which statute Kimble County is a part of the 112th Judicial District of Texas, and that an indictment returned in the District Court of Kimble County was returned in the District Court of the 112th Judicial District in and for Kimble County.

It is next contended that the indictment is duplicitous and repugnant because it charges the killing to have been done by accident and mistake. If the distinction which appellant contends in fact exists, the conjunction allegation is...