McAllister v. State, 26480
| Decision Date | 10 June 1953 |
| Docket Number | No. 26480,26480 |
| Citation | 261 S.W.2d 332,159 Tex.Crim. 57 |
| Parties | McALLISTER v. STATE. |
| Court | Texas Court of Criminal Appeals |
M. Gabriel Nahas, Jr., and James Royall, Houston, for appellant.
William H. Scott, Crim. Dist. Atty., and King C. Haynie, Asst. Crim. Dist. Atty., Houston, Wesley Dice, State's Atty., of Austin, for the State.
It is alleged that the appellant, while driving a motor vehicle upon a public highway and while under the influence of intoxicating liquor, through mistake and by accident, killed Caleb Starr. On the trial therefor he was found guilty and sentenced to a term of four years in the state penitentiary for the offense of murder without malice.
The facts that on June 13, 1952, the appellant was traveling on a public highway in East Houston, and was observed by Mr. Jaenicke, who was Chief of the East Houston Voluntary Fire Department. Mr. Jaenicke's attention was called to a car which was being driven in an erratic manner. He followed it and observed same for quite a distance down such street or highway. Eventually this car was driven close to a car which was parked on the right-hand side of the road on which appellant was then traveling, with a Negro man standing thereby who was attempting to pump up the left-hand rear tire on his car. Appellant struck this Negro man, knocked him quite a distance and injured him severely. Appellant then turned his car quickly off to the left side of the road and struck Mr. Caleb Starr, who was on appellant's left-hand side of the road in the ditch thereof. He struck Mr. Starr so severely that he died immediately thereafter. Appellant did not stop but continued his driving in the same erratic manner and finally wound up at the Super-Duper Drive-in which was some distance from the scene of the accident. According to his own statement, he walked into such drive-in and ordered four bottles of beer, one after the other, and drank three of them. As he started to drink the fourth bottle the officers walked in and apprehended him. Many of the witnesses testified as to the appellant's drunken condition. Some witnesses also testified as to his sobriety prior to the time this wreck occurred.
It is the appellant's contention that he was sober but that when he struck this Negro it dazed him so that he remembered nothing else until he waked up in front of this beer tavern.
It is also worthy of note that appellant told the keeper of this beer tavern that he believed that he had hit somebody back up there and did not know what to do about it.
There is only one real question presented on the trial of this case and that is relative to a sample of blood that was taken from the appellant and the analysis thereof which was heard before the jury from a chemist witness. It is the appellant's contention that the blood thus analyzed by the chemist was not shown to have been the same blood that was taken from the appellant's body soon after his apprehension by the officers.
It seems that there is some little confusion as to how the sample of blood reached the office of the State Chemist in Austin. The testimony does show that Don Henry, the arresting officer, was present at the time that Doctor Jones took the blood out of the appellant's vein; that the officer held the container in which the blood was placed after it was taken from the appellant's arm; that he held the test tube while it was being filled; that he put the lid on it, sealed it, and mailed it to Austin, Texas; that the test tube presented in evidence from which the alcoholic content was taken had on it the mark, '6-14&052.' The officer testified that appellant was arrested at 12:05 A.M. of the sixth month and the fourteenth day in the year ...
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