State v. Boyles, 12097

• Decision Date: 30 December 1977
• Docket Number: No. 12097,12097
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Victor Allen BOYLES, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 642

260 N.W.2d 642

STATE of South Dakota, Plaintiff and Respondent, v. Victor Allen BOYLES, Defendant and Appellant.

No. 12097.

Supreme Court of South Dakota.

Dec. 30, 1977.

Judith Atkinson, Asst. Atty. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen., Peter H. Lieberman, Asst. Atty. Gen., Pierre, on brief.

Thomas M. Maher of Duncan, Olinger, Srstka, Maher & Lovald, Pierre, for defendant and appellant.

WOLLMAN, Justice.

Defendant appeals from his conviction on a charge of driving while intoxicated. We affirm.

Early in the morning of June 27, 1976, defendant's automobile, which was proceeding in the direction of defendant's home some three blocks away, struck a parked car in the city of Fort Pierre. A witness who arrived at the scene shortly after the collision observed defendant sitting in the driver's seat of his automobile slumped over the steering wheel. The arresting officers observed that some blood had dripped from defendant's nose onto the front of his shirt.

Defendant testified that he had started drinking at about 10 o'clock on Saturday morning, June 26, 1976, and continued to drink until sometime between 10:00 and 11:00 p. m., when he laid down in the back seat of his automobile and went to sleep. Defendant had the keys to his automobile in his pocket at the time he went to sleep. He testified that the next thing he remembered was being thrown down between the seats by the force of the impact. He noticed that the motor of his car was still running, so he got into the front seat and turned off the ignition.

The investigating officers observed no blood stains in the car. An insurance adjuster testified that he had observed what he thought to be blood on the back of the front seat when he inspected the car some two days after the accident.

Defendant contends that the evidence is insufficient to support the verdict in that the testimony of the insurance adjuster that he observed what he thought to be blood on the top of the back rest of the front seat contradicts any circumstantial inference that defendant was driving the car at the time of the accident. We do not agree. It was for the jury to judge the credibility of the witnesses and to draw such inferences as might be fairly drawn from the evidence. Upon appeal, we must accept the evidence, and the most favorable inferences that the jury might fairly have drawn therefrom, that will support the verdict. State v. Geelan, 80 S.D. 135, 120 N.W.2d 533; State v. Zobel, 81 S.D. 260, 134 N.W.2d 101; State v. Henry, 87 S.D. 454, 210 N.W.2d 169; State v. Best, S.D., 232 N.W.2d 447. When viewed in the light most favorable to the verdict, the evidence is sufficient to support the jury's finding that defendant was driving the automobile at the time of the collision. See State v. Townsend, S.D., 231 N.W.2d 367.

After some four hours of deliberation, the jury submitted a request that they be permitted to review the testimony of one of the state's witnesses. After giving counsel an opportunity to be heard upon the request, the trial court directed the court reporter to read to the jury the witness's testimony in its entirety. Defendant now complains that the trial court failed to comply with SDCL 23-45-3, which provides:

"After the jury has retired for deliberation, if there be a disagreement between them as to any part...