McClanahan v. State, 28935
| Decision Date | 02 June 1953 |
| Docket Number | No. 28935,28935 |
| Citation | 112 N.E.2d 575,232 Ind. 567 |
| Parties | McCLANAHAN v. STATE. |
| Court | Indiana Supreme Court |
Claude Cline, Huntington, for appellant.
J. Emmett McManamon, former Atty. Gen., William T. McClain, former Deputy Atty. Gen., Edwin K. Steers, Atty. Gen., Carl Humble, Deputy Atty. Gen., for appellee.
This is an appeal from a judgment on a verdict finding appellant guilty of the second offense of operating a motor vehicle while under the influence of intoxicating liquor, and ordering him imprisoned in the Indiana State Farm for six months and to pay a fine in the sum of $100. The error assigned on appeal is that the court erred in overruling appellant's motion for a new trial.
The evidence when viewed most favorably to the State, discloses that the appellant had been drinking the night of October 24, 1951, and at a tavern called Doc's Place at about 11:00 o'clock he had been refused a drink. Later he drove his automobile on the streets of the City of Huntington, where he was observed by a member of the police department driving about tne miles an hour and weaving back and forth. He finally stopped his car, and the policeman operned his car door, observed his appearance, and arrested him for operating a motor vehicle while under the influence of intoxicating liquor, He was then taken to the police headquarters in the city hall where he was observed by Officer Burton on duty at the desk, and an arrest report was made out by him. Appellant's breath smelled of liquor, his face was red, his eyes were bloodshot, his speech was thick, his hair was hanging down, he staggered and waved as he walked so that the arresting officer had to assist him, and when he sat in the chair at police headquarters he was weaving back an forth. The verdict was sustained by sufficient evidence and was not contrary to law.
Appellant complains that the court erred in admitting testimony as to what occurred at the police headquarters on the ground that the police officers failed to comply with, and violated § 47-2307, Burns' 1952 Replacement. This section of the Motor Vehicle Act reads as follows:
'Whenever any person is arrested for any violation of this act punishable as a misdemeanor, the arrested person shall be immediately taken before a magistrate within the county in which the offense charged is alleged to have been committed and who has jurisdiction of such offense and is nearest or most accessible with reference to the place where said arrest is made, in any of the following cases:
'1. When a person arrested demands an immediate appearance before a magistrate;
'2. When the person is arrested and charged with an offense under this act causing or contributing to an accident resulting in injury or death to any person;
'3. When the person is arrested upon a charge of reckless homicide;
'4. When the person is arrested upon a charge of driving while under the influence of intoxicating liquor or narcotic drugs;
'5. When the person is arrested upon a charge of failure to stop in the event of an accident causing death, personal injuries, or damage to property;
No complaint is made that clause 1 was violated, for the appellant made no demand that he be taken immediately before a magistrate. There was proof made at the trial that there was a justice of the peace located in Huntington at the time of the arrest.
Under § 14 of Article 7 of the Constitution of Indiana a justice of the peace is a judicial officer and in the Judicial department, although his powers and duties are only those prescribed by law. 1 'That the office of justice of the peace is a judicial office under our Constitution and statutes, is well settled.' Vogel v. State ex rel. Land, 1886, 107 Ind. 374, 377, 8 N.E. 164, 165. By § 1 of Article 3 of our Constitution our powers of government are specifically separated into three departments. 2
Although clause (b) of § 47-2001, Burns' 1952 Replacement, prohibits the operation of a motor vehicle while under the influence of intoxicating liquor or narcotic drugs, intoxication is not required to be proved beyond a reasonable doubt for the offense to be proved. 3
If an accused in fact is intoxicated while operating a motor vehicle his mental condition is such that he could not enter a plea of guilty to the charge 'freely and understandingly,' which must be the case if the plea be valid. Beard v. State, 1949, 227 Ind. 717, 88 N.E.2d 769; Cassidy v. State, 1929, 201 Ind. 311, 168 N.E. 18, 66 A.L.R. 622; Lobaugh v. State, 1948, 226 Ind. 548, 82 N.E.2d 247; Vonderschmidt v. State, 1948, 226 Ind. 439, 81 N.E.2d 782; 26 Ind.Law Jl. 529, 534. This is a judicial standard for a valid plea of guilty, and the Legislature has no power to interfere with the courts in this requirement. Obviously he should not be released from custody while intoxicated, for this would permit him to commit another misdemeanor by being found in a public place unlawfully in a state of intoxication. Section 12-611, Burns 1942 Replacement. Nor would such a person be competent to execute a recognizance bond.
We do not believe that the Legislature intended to require an accused who is in fact drunk or in an unlawful state of intoxication, although charged with operating a motor vehicle while under the influence of intoxicating liquor, to be brought before a magistrate. We believe that the court and jury were warranted in finding that the appellant was in fact drunk and in an unlawful state of intoxication when he was arrested and taken to police headquarters; therefore it was not necessary that he be taken immediately before a magistrate.
But more serious considerations affect the validity of clause 4 of $47-2307, Burns' 1952 Replacement, when an accused is not intoxicated but only under the influence of intoxicating liquor. The statute fails to provide that the accused be brought before a magistrate during the usual hours for conducting court. The appellant in this case was arrested at approximately 12:30 A.M. October 25, 1951. Can the Legislature require that magistrates conduct court twenty-four hours every day? Could the Legislature by statute require the Supreme...
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