Shorter v. State

• Citation: 52 A.L.R. 1329,122 N.E.2d 847,234 Ind. 1
• Decision Date: 08 December 1954
• Docket Number: No. 29199,29199
• Parties: , 52 A.L.R.2d 1329 Johnny V. SHORTER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 847

122 N.E.2d 847

234 Ind. 1, 52 A.L.R.2d 1329

Johnny V. SHORTER, Appellant, v. STATE of Indiana, Appellee.

No. 29199.

Supreme Court of Indiana.

Dec. 8, 1954.

Frank R. Ryan, Danville, for appellant.

Edwin K. Steers, Atty. Gen., of Indiana, Richard M. Givan, Deputy Atty. Gen., for appellee.

BOBBITT, Judge.

Appellant was charged by affidavit in two counts, Count 1 charging the offense of operating a motor vehicle while under the influence of intoxicating liquor, and Count 2 charging reckless driving under Acts 1939, ch. 48, § 52, p. 289, being § 47-2001, Burns' 1952 Replacement. He was tried by jury which returned the following verdict.

'We, the Jury, find the defendant guilty, as charged in Count One and Count Two of the affidavit herein, and we fix his punishment as a fine in the sum of $150.00; we find that the defendant should be imprisoned in the state farm for a period of 90 davs.'

Motion for a new trial contains four specifications or grounds therefor. Specifications 1 and 4 are not discussed in the argument section of appellant's brief and the questions raised thereby are, therefore, waived, Rule 2-17(e) and (f), Indiana Supreme Court, 1954 Ed.; Bryant v. State, 1954, Ind.Sup., 118 N.E.2d 894.

The sole question presented by specifications 2 and 3 is the sufficiency of the evidence to sustain the verdict of the jury.

First: Appellee asserts that appellant's brief fails to show the filing of a bill of exceptions and because of this no question as to the sufficiency of the evidence is presented for review.

The rules of this court do not require that the appellant's brief contain a formal statement that a bill of exceptions was duly filed with the clerk of the trial court. See Hart v. Scott, 1907, 168 Ind. 530, 81 N.E. 481.

Second: Having disposed of the procedural question favorably to appellant, we now proceed to consider the questions presented on the merits of the case, and shall consider the sufficiency of the evidence to support the separate counts of the affidavit in their numerical order.

Count 1 of the affidavit is as follows:

'Be It Remembered, that on this day, before me, Richard J. Groover, Pro. Atty. for the 55th Jud.Cir., Porter Money personally came who, being duly sworn upon his oath, says that, as he is informed and believes, Johnny V. Shorter on the 6th day of September, A.D. 1953, at and in the county of Hendricks and State of Indiana, did then and there unlawfully drive and operate a certain motor vehicle, to-wit: an automobile; over and along a certain public highway, to-wit: State Highway No. 36, county and state aforesaid, while he, the said Johnny V. Shorter was then and there under the influence of intoxicating liquor, and while he, the said Johnny V. Shorter, had been previously convicted of the offense of operating a motor vehicle while under the influence of intoxicating liquor, said conviction being in the Justice of Peace Court in the town of Danville, Indiana, on the 5th day of March, 1951, the same being contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Indiana.'

The fact that appellant was driving his automobile at the time and place charged in the affidavit is not disputed. There remains then for the state to prove beyond a reasonable doubt by some substantial evidence of probative value, that appellant was under the influence of intoxicating liquor within the meaning of the statute while driving his automobile as charged in the affidavit.

The evidence most favorable to the state in support of Count 1 may be summarized as follows:

The county sheriff testified that he talked with appellant at the time of the accident, and that appellant's breath smelled very strongly of intoxicating liquor, that he walked in an unsteady manner, and that his eyes 'were more or less bloodshot.'

A deputy sheriff testified that appellant, at the time of the accident, 'seemed to be kind of stuttering,' and that his tongue was 'thick'.

The state policeman who was called to the accident testified that he could smell alcohol on appellant's breath as he assisted him to the ambulance. Appellant testified, on direct examination, that he had drunk a bottle of beer about 11 A.M., and another about the 'middle of the afternoon' on the day of the accident.

Evidence that the defendant's manner of walking was unsteady, his speech thick, face flushed, eyes red, and his breath smelled of alcohol, together with the testimony of three witnesses that in their opinion he was under the influence of intoxicating liquor was held to be sufficient to sustain the conviction in Bell v. State, 1954, Ind.Sup., 122 N.E.2d 466.

Testimony of witnesses that the accused was drunk, that his car zigzagged across the street as he drove it, that he was staggering and his speech was thick was held sufficient to sustain a conviction for driving while intoxicated. Degutes v. State, 1926, 189 Wis. 435, 207 N.W. 948.

Also, evidence that the accused was unsteady on his feet; that his breath smelled of alcohol; that he talked with a thick tongue has been held sufficient to sustain a conviction for driving while intoxicated. State v. Ketter, 1926, 121 Kan. 516, 247 P. 430; State v. Noble, 1926, 119 Ore. 674, 250 P. 833.

In construing the meaning of 'under the influence' of intoxicating liquor in a statute ¹ similar to that here under consideration the Appellate Court of this state said:

'The offense defined by the statute is not the operation of a motor vehicle by one who is drunk or intoxicated, but 'while under the influence of intoxicating liquor.' It is evident that in the enactment of the statute the lawmakers intended to relieve the state from making proof that the offender was drunk, in the meaning of that word as commonly used.' Klaser v. State, 1929, 89 Ind.App. 561, 562, 166 N.E. 21.

We believe this is a fair statement of the intent of the legislature and this court has so construed the same phrase in the present motor vehicle act. ² McClanahan v. State, 1953, 232 Inc. 567, 112 N.E.2d 575.

'Under the influence of intoxicating liquor' are words in common use--they are not words of technical nature--and are well understood by the laity, who know they refer to the impaired condition of though and action, and the loss of the normal control of one's faculties to a marked degree, caused by drinking intoxicating liquors.

It is not necessary for a driver to be drunk in order to violate the statute making it unlawful for a person to operate a motor vehicle upon a public highway while 'under the influence of intoxicating liquor'; nor is it necessary to prove any specific degree of intoxication, but in each case where a person is charged with violation of the provisions of the act, the question as to whether the defendant was 'under the influence of intoxicating liquor' is one of fact to be determined by the court or jury from all the circumstances of the case.

The jury might properly have drawn inferences from the circumstances of this case as shown by the evidence above summarized to support a verdict of guilty under Count 1.

Count 2. The statute, § 47-2001(c), Burns' 1952 Replacement, defines reckless driving as driving a vehicle with reckless disregard for the safety, property or rights of others, and further provides that, among other things, the offense may be based upon driving recklessly against the car or other property of another, or driving in any other specified manner in which the driver is heedless of the probable injury to the safety, property or rights of others.

Reckless disregard for the safety of others as used in the reckless driving statute 'involves a conscious choice of course of action which injures another, either with knowledge of serious danger to others involved therein, or with knowledge of facts which would disclose the danger to any reasonable man.' Beeman v. State, 1953, 232 Ind. 683, 115 N.E.2d 919, 922.

The evidence most favorable to the state on Count 2 of the affidavit is, we believe, accurately summarized in appellee's brief as follows:

'That the driver of the other car involved was proceeding in a proper manner on a public highway and that immediately prior to the accident the other automobile involved had two (2) headlights and two (2) taillights burning thereon, that it was moving at a rate of 3 to 4 miles per hour, and that the driver was executing a right turn from said highway on to a gravel side road, that prior to the making of said turn and during said turn, the driver was executing a proper hand signal, that the defendant was approaching from the rear of the other automobile at a speed of approximately 50 miles per hour, and that the pavement was dry at the time. There was no evidence of any unusual obstruction to appellant's vision nor was there any evidence of mechancial failure which would have rendered appellant powerless to avoid the collision.'

There is evident here a situation where the driver of an automobile turned off the main highway on to a side road, and in so doing he slowed down to a...