Hasten v. State

• Decision Date: 23 September 1929
• Docket Number: Criminal 692
• Citation: 35 Ariz. 427,280 P. 670
• Parties: CHARLES HASTEN, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

280 P. 670

35 Ariz. 427

CHARLES HASTEN, Appellant, v. STATE, Respondent

Criminal No. 692

Supreme Court of Arizona

September 23, 1929

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Affirmed.

Mr. V L. Hash, for Appellant.

Mr. K Berry Peterson, Attorney General, Mr. Riney B. Salmon Assistant Attorney General, and Mr. George Wilson, County Attorney, for the State.

OPINION

LOCKWOOD, C. J.

Charles Hasten, appellant herein, was convicted in the superior court of Maricopa county upon an information which charged him with operating a motor vehicle while under the influence of intoxicating liquor, and has appealed from the judgment and the order denying a new trial.

The are three assignments of error. The first raises the question of the admissibility of certain evidence as to the speed at which appellant was driving when arrested. It is urged that the speed of his car has no connection with the particular offense charged. We cannot agree with this contention. It is a notorious fact that one of the first things a driver under the influence of liquor is apt to do is to drive at a high rate of speed, especially when an advanced state of intoxication has not yet been reached. Such being the case the speed at which appellant was driving was one of the circumstances which the jury might properly consider in determining whether he was under the influence of liquor at the time. If appellant desired that the jury should be warned that they should consider the evidence only for its bearing on that question, he should have requested an instruction to that effect. Hart v. State, 26 Ga.App. 64, 105 S.E. 383; Simpkins v. State, 35 Okla.Crim. 143, 249 P. 168; State v. Jenkins, 203 Iowa 251, 212 N.W. 475.

The second and third assignments of error go to the question of what extent of influence of liquor is required to justify a conviction under our statute.

It is appellant's claim that this means in effect "under the influence of intoxicating liquor to the extent of impairing to an appreciable degree his ability to operate his car in the manner that an ordinarily prudent and cautious man, in the full possession of his faculties and using reasonable care, would operate a similar vehicle under similar conditions." It is the contention of the state, on the other hand, that the law means "any influence of intoxicating liquor, however slight," and the trial court instructed the jury on this latter theory.

Appellant's view of the law is apparently upheld by the Supreme Court of California. In the case of People v. Dingle, 56 Cal.App. 445, 205 P. 705, 706, the court says, "it is a natural and almost necessary assumption that the words 'under the influence of intoxicating liquor' were not inserted in the Motor Vehicle Act for the purpose of fastening guilt in the case of every and any 'influence' due to the use of intoxicating liquors, however slight," and then follows with a definition substantially like that contended for by appellant. This decision was approved and followed in People v. Ekstromer, 71 Cal.App. 239, 235 P. 69, and People v. McKee, 80 Cal.App. 200, 251 P. 675. On the other hand, the courts of New Jersey and Oregon have upheld the state's position. In the case of State v. Rodgers, 91 N.J.L. 212, 102 A. 433, 435, under a statute whose language is similar to ours, it was held:

"It will be noticed that it is not essential to the existence of the statutory offense that the driver of the automobile should be so intoxicated that he cannot safely drive a car. The expression, 'under the influence of intoxicating liquor,' covers not only all the well known and easily recognized conditions and degrees of intoxication, but any abnormal mental or physical condition which is the result of indulging in any degree in intoxicating liquors, and which tends to deprive him of that clearness of intellect and control of himself which he would otherwise possess. So one driving...