State v. Chester

• Decision Date: 08 August 1969
• Docket Number: No. 8874,8874
• Citation: 445 S.W.2d 393
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Ivan A. CHESTER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 393

445 S.W.2d 393

STATE of Missouri, Plaintiff-Respondent, v. Ivan A. CHESTER, Defendant-Appellant.

No. 8874.

Springfield Court of Appeals, Missouri.

Aug. 8, 1969.

Gordon R. Boyer, Lamar, for defendant-appellant.

John R. Miller, Pros. Atty., Lamar, for plaintiff-respondent.

STONE, Judge.

Defendant Ivan A. Chester appeals from the judgment and sentence entered upon the jury verdict which found him guilty of the misdemeanor of driving a motor vehicle while in an intoxicated condition (V.A.M.S. § 564.440, as amended Laws 1963, p. 686), and assessed the minimum punishment, to wit, a fine of $100.

Defendant's principal point on this appeal is that 'the court erred in refusing to direct a verdict of not guilty at the close of the state's case or at the close of all evidence . . ..' Motions for directed verdict in criminal cases were abolished and motions for judgment of acquittal substituted in their place by the express provisions of V.A.M.R. Rule 26.10; but, in 'the just determination' of the cause (V.A.M.R. Rule 36.02), we will treat instant defendant's motions as motions for judgment of acquittal and the point in his appellate brief as amended accordingly. However, by testifying in his own behalf he waived any claim of error in overruling his motion at the close of the state's case (State v. Hill, Mo., 438 S.W.2d 244, 247(5); State v. McDaniel Mo., 392 S.W.2d 310, 314(2)) and submissibility must be determined upon the entire evidence. State v. Sykes, Mo., 372 S.W.2d 24, 25(2); State v. Davis, Mo., 365 S.W.2d 577, 579(3).

Monday, June 12, 1967, was an unpleasant, disagreeable day for defendant, then 56 years of age, who resided in Joplin, Missouri, and was employed by the Missouri Public Service Commission as an engineer engaged in making original cost studies and appraisals of public utility properties for rate making purposes. He and his wife had 'a family argument or quarrel that morning' and he waited for 'a call from one of my men on one of the jobs . . . so it was noon or after when I left my residence in Joplin.' On his way out of town, he stopped at a cleaning establishment and thereafter at a drug store at 7th and Range Line where he bought a pint of whiskey--a 'not unusual' purchase when he departed 'on a working day trip.' Then he 'started on up the highway headed for Parkville, Missouri, which is north of Kansas City.' Traveling north on U.S. Highway 71 in his 1966 Oldsmobile sedan, he had reached a point about ten miles north of Lamar and two miles south of the Barton County-Vernon County line, and thus, as we judicially know, had driven approximately fifty miles from Joplin (State v. Martin, 349 Mo. 639, 643, 162 S.W.2d 847, 849(1); State v. Enochs, 339 Mo. 953, 956, 98 S.W.2d 685, 686(1); State v. Garrett, Mo., 416 S.W.2d 116, 118(1), 119), when he had a one-car accident 'about 2 (P.M.), a little before.'

Defendant's testimonial account was that 'a red (southbound) convertible came around this curve, around another car, and I had to go to the (east gravel) shoulder to keep from having a head-on collision'; that this shoulder was 'a bit damp and my car started fishtailing and going back and forth' and just north of an intersecting county road the Oldsmobile 'kicked clear around and I just shot right across the highway and hit the (west) ditch, which threw me clear over into the right side of the car and . . . practically all under the dashboard'; and that this 'jolted me to the point that I don't know how long I was there before I extricated myself. . . .' 'When I got myself up from under the dashboard . . . I took this bottle of whiskey and took a great big slug of it . . . a big gulp, and I did that two or three times before I kinda figured out where I was and what I was doing.' While defendant was sitting in the Oldsmobile 'with that bottle of whiskey laying in the seat right beside' him, a southboudn motorist stopped, 'came back to see if he could be ofa any help,' and noticing the bottle on the seat admonished defendant 'you better get rid of that, if the trooper comes along here he will really pick at you for having an open bottle there beside you.' Heeding the counsel of this unidentified Good Samaritan, 'I gave (the bottle) to (him) . . . and he put it in his pocket and walked on back to his car.' In 'a matter of minutes, ten minutes maybe fifteen,' Trooper Marvin Dalton of the Missouri State Highway Patrol stopped at the scene of accident. When asked upon trial whether he had made any statement to Dalton about the accident, defendant replied 'I did not make no statement.' He insisted that he was not intoxicated 'in any degree' at the time of accident but admitted that the whiskey allegedly gulped thereafter had 'an effect' on him by the tiem he had Dalton arrived at the Barton County jail in Lamar. His brief concedes 'there was evidence that the defendant was intoxicated at the Barton County jail.

Trooper Dalton, called as a state's witness, testified that, after defendant was advised of his constitutional rights, he first 'told me he wasn't telling me nothing' but that, while Dalton was 'writing up in my book the accident information,' defendant volunteered 'I want to tell you what happened' and then made the statement, 'there was a son of a bitch stopped in front of me, being slightly inebriated I swerved to miss that car.' According to Dalton, defendant further 'said that he and Mary, his wife, had a fuss that morning and he kept calling me 'sonny boy,' and he wanted me to give him the test, he thought it would be very interesting.' The trooper declared that defendant's face 'was flushed,' his eyes 'were bloodshot,' and his speech 'was slurred'; that his clothes 'were muffed (sic) and there was a wet spot on the lower part of them where he relieved himself'; that he was 'very talkative and cocky and insulting' and used much profanity; and that in walking 'he staggered very much.' Dalton expressed the definite opinion that defendant 'was intoxicated.' While at the scene of accident, Dalton 'paced the skid marks' made by defendant's automobile, explaining that each pace was approximately three feet. He found that 'it skidded thirteen paces (on the east shoulder of Highway 71) before it got to the (intersecting county) road and then it went another eighty-nine paces along the (east) shoulder . . . there were four skid marks there and they broke and went into two skid marks for forty-six paces and then the car went west across the highway twenty-seven paces and then out into a field on the west side of the highway sixty-seven paces' coming to a stop 'partially on the (west) shoulder and (partially in) the field.'

Trooper Jerry McCoy of the Highway Patrol, an approved Type III examiner, administered a breathalyzer test to defendant at the Barton County jail about 3:10 P.M. and, without objection or motion to strike, stated that such 'test showed .24% blood alcohol.' V.A.M.S. §§ 564.441, 564.442; Laws 1965, p. 670. And Sheriff Calvin Dockery of Barton County testified concerning defendant's action and conduct in the jail that afternoon (e.g., that defendant was 'very belligerent,' staggered around the room, could hardly sit on a stool while undertaking to dial § telephone, and was 'very abusive' to operators attempting to complete long distance calls for him) and expressed the opinion that he was 'pretty well intoxicated.'

As defendant points out, the burden rested upon the state to adduce substantial evidence of every constituent element of the charged offense of driving a motor vehicle while in an intoxicated condition (State v. Osborne, Mo.App., 413 S.W.2d 571, 573(4); State v. Roseberry, Mo.App., 283 S.W.2d 652, 656(3)), namely (1) that defendant operated a motor vehicle and (2) that he was in an intoxicated condition while so doing. State v. Kissinger, 343 Mo. 781, 783--784, 123 S.W.2d 81, 82(1); State v. Campbell, Mo., 292 S.W.2d 297, 299. Since defendant admitted having driven his automobile from Joplin to the point of accident, only the second element was in controversy. In determining the sufficiency of the evidence on this contested issue to support the verdict of guilty, we must consider as true all substantial evidence favorable to the verdict, together with favorable inferences that may be reasonably drawn therefrom, and must reject evidence unfavorable to the verdict. State v. Sykes, Mo., 436 S.W.2d 32, 34(2); State v. Webb, Mo., 423 S.W.2d 795, 799(6). The credibility of the witnesses and the weight to be accorded to their testimony were for the jury (State v. Dowe, Mo., 432 S.W.2d 272, 274(2); State v. Williams, Mo., 376 S.W.2d 133, 136(10)) and are not within the purview of our appellate review. State v. Small, Mo., 423 S.W.2d 750, 751(2); State v. Hampton, Mo. (banc), 275 S.W.2d 356, 359(4).

The triers of the facts were privileged to accept the testimony of Trooper Dalton, including his declaration that, in telling him what had happened, defendant had explained, 'there was a son of a bitch stopped in front of me, being slightly inebriated I swerved to miss that car.' Defendant endeavors to depreciate the significance of this admission that he was 'slightly inebriated' by emphasizing selected dictionary definitions of 'slight' while ignoring the denotation of 'inebriated.' Webster's Third New International Dictionary, p. 1156, defines 'inebriated' as 'exhilarated or confused by or as if by alcohol' and directs the zetetic 'see drunk,' where, following definitions of 'drunk,' the lexicographer records (p. 656) the connotations of several synonyms, including the following: 'INEBRIATED and the less common INEBRIATE suggest more noisy, hilarious, or roistering indulgence . . ..' In a similar review of the connotations of the same synonyms of 'drunk,' it is said in Webster's New International Dictionary (2nd Ed.), p. 792, that 'INEBRIATED, in common parlance, is chiefly euphemistic,' i.e., the 'substitution of an agreeable or nonoffensive word . . . for...