State v. Childress, 1054

• Decision Date: 27 September 1954
• Docket Number: No. 1054,1054
• Citation: 78 Ariz. 1,274 P.2d 333
• Parties: , 46 A.L.R.2d 1169 STATE of Arizona, Appellee, v. Warren G. CHILDRESS, Appellant.
• Court: Arizona Supreme Court

Page 333

274 P.2d 333

78 Ariz. 1, 46 A.L.R.2d 1169

STATE of Arizona, Appellee, v. Warren G. CHILDRESS, Appellant.

No. 1054.

Supreme Court of Arizona.

Sept. 27, 1954.

Marshall W. Haislip, Phoenix, for appellant.

Ross F. Jones, Atty. Gen., and John R. Elliott, Asst. to the Atty. Gen., for appellee.

UDALL, Justice.

Defendant Warren G. Childress was convicted by a jury in the Superior Court of Maricopa County of the crime of driving a vehicle while under the influence of intoxicating liquor, contrary to the statute, Ch. 3, Sec. 54, Laws 1950, 1st S.S., now appearing as Section 66-156, 1952 Cum.Supp. As a second offender he was sentenced to serve five months in the county jail, and from this judgment he now appeals. The trial court granted bail pending its determination.

The State's evidence showed that on the 22nd day of October, 1953, defendant was observed by an Arizona highway patrolman driving an automobile southeast on Grand Avenue in Maricopa County at an excessive speed, and weaving from side to side on his own half of the highway. He was stopped by the officer, who testified that defendant's speech was blurred, eyes bloodshot, and his actions were those of an intoxicated person. An Air Force policeman riding with the highway patrolman testified that he observed the same facts, as did a senior highway patrol officer called to the scene by the arresting officer. Defendant at that time admitted having drunk ten beers and two shots of whiskey. He was taken to the Memorial Hospital in Phoenix where he gave written permission for a sample of his blood to be taken for purposes of conducting a blood-alcohol test. The hospital technician testified that the results of the test showed defendant's blood contained alcohol in the amount of 0.20 percent by weight.

Defendant offered no evidence but moved for dismissal, which motion was denied. Defendant thereupon objected to the instructions proposed to be given to the jury, in particular objecting to the instructions which paraphrased section 66-156, supra, telling the jury that upon proof of certain alcoholic content of the blood, certain presumptions arose. The instructions were nevertheless given, and such action of the trial court is here assigned as error.

Omitting the usual stock instructions, we believe it will be helpful to set out pertinent parts of other instructions given by the court.

'The statute in this state provides that it is unlawful for any person who is under the influence of intoxicating liquor to drive or be in actual physical control of any vehicle within this state. The statute further provides that in any criminal prosecution for a violation of this statute relating to driving a vehicle while under the influence of intoxicating liquor, the amount of alcohol in the defendant's blood at the time alleged as shown by chemical analysis of the defendant's blood, urine, breath, or other bodily substance, shall give rise to the following presumptions.

'One, if there was at that time 0.05 percent or less by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was not under the influence of intoxicating liquor.

'Two, if there was at that time in excess of 0.05 percent but less than 0.15 percent by weight of alcohol in the defendant's blood, such fact shall not give rise to any presumption that the defendant was or was not under the influence of intoxicating liquor, but such fact may be considered with other competent evidence in determining the guilt or innocence of the defendant.

'Three, if there was at that time 0.15 percent or more by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was under the influence of intoxicating liquor.

'The statute further provides that the foregoing provisions shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether or not the defendant was under the influence of intoxicating liquor.

* * *

* * *

'In order that you may convict the defendant of the crime charged in the information in this case, it is incumbent upon the State to satisfy you beyond a reasonable doubt of the truth of every material allegation of the information. The law raises no presumption against the defendant, but every presumption of the law is in favor of his innocence, and he is presumed to be innocent until proven guilty beyond a reasonable doubt.'

Defendant urges the instructions on presumptions relative to intoxication were erroneous, contending that they are violative of the due process clauses of the federal and state constitutions in that they presume the guilt of one accused of crime and relieve the State of proving guilt beyond a reasonable doubt. Furthermore, it is urged they are a comment on the evidence which is forbidden by Article 6, Section 12, Constitution of Arizona, and conflict with the subsequent instruction that the law raises no presumption against the defendant. We intend to limit our decision herein strictly to these problems.

The instructions do not presume the guilt of the accused. Guilt in the instant case would consist in driving the vehicle while under the influence of intoxicating liquor, and these elements had to be proved beyond a reasonable doubt. The jury was not told the law presumed defendant guilty of crime, nor even that the law presumed him under the influence of intoxicating liquor, instead they were told in effect that upon proof (beyond a reasonable doubt) of the fact that there was 0.15 percent or more by weight of alcohol in his blood, the law presumed him under the influence of intoxicating liquor. The court in effect was but stating the rule of law governing the case in hypothetical terms, saying 'If you the jury find certain facts proved beyond a reasonable doubt, then an element of the state's case is presumed to be present.', and the defendant then has the privilege of going forward with his evidence on this particular point. We fail to see wherein the instruction presumes defendant's guilt or relieves the state of its burden of proving him guilty beyond a reasonable doubt.

The law governing such presumptions is well stated by Mr. Justice Butler in Manley v. State of Georgia, 279 U.S. 1, 49 S.Ct. 215, 217, 73 L.Ed. 575, as follows:

'State legislation declaring that proof of one fact or a group of facts shall constitute prima facie evidence of the main or ultimate fact in issue is valid if there is a rational connection between what is proved and what is to be inferred. If the presumption is not unreasonable and is not made conclusive of the rights of the person against whom raised, it does not constitute a denial of due process of law. (Citing case.) A prima facie presumption casts upon the person against whom it is applied the duty of going forward with his evidence on the particular point to which the presumption relates. A statute creating a presumption that is arbitrary or that operates to deny a fair opportunity to repel it violates the due process clause of the Fourteenth Amendment. (Citing case.) Mere legislative fiat may not take the place of fact in the determination of issues involving life, liberty or property. 'It is not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime.' (Citing case.)'

Using this yardstick the court held that a statute making all bank insolvencies presumptively fraudulent was invalid because in the common experience of men the relationship between the two facts was not strong enough. In Tot v. U. S., 319 U.S. 463, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519, Mr. Justice Roberts speaking for the court declared:

'* * * Under our decisions, a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience. This is not to say that a valid presumption may not be created upon a view broader than that a jury might take in a specific case. But, where the inference is so strained as not to have a reasonable relation to the circumstances of life as we know them it is not competent for the legislature to create it as a rule governing the procedure of courts.'

The court there struck down a statute creating the presumption that a fugitive from justice, or person convicted of a crime of violence, found in possession of a firearm or ammunition, had received the same through interstate or foreign...