State v. Dale

• Decision Date: 22 March 1939
• Docket Number: 8205
• Citation: 284 N.W. 770,66 S.D. 418
• Parties: STATE OF SOUTH DAKOTA, Respondent, v. CLAUDE DALE, Appellant.
• Court: South Dakota Supreme Court

66 S.D. 418

284 N.W. 770

STATE OF SOUTH DAKOTA, Respondent,

v.

CLAUDE DALE, Appellant. South Dakota Supreme Court Appeal from Circuit Court, Tripp County, SD Hon. John G. Bartine, Judge #8205—Affirmed W.J. Hooper, Gregory, SD Attorney for Appellant. H.O. Lund, Winner, SD Clair Roddewig, Attorney General Ellsworth, Evans, Assistant Attorney General, Pierre, SD Attorneys for the State. Opinion Filed Mar 22, 1939

WARREN, Presiding Judge.

Early in the morning of December 1, 1937, the defendant, Claude Dale, together with two young men, was driving from Winner to Gregory, South Dakota, on Highway US No. 18. At a point somewhere between Colome and Dallas, South Dakota, Dale’s car met the car of the complaining witness on a narrow bridge or culvert, the cars sideswiping one another. According to the testimony of both the defendant and the State, Dale had been drinking, but the amount of liquor consumed and the degree of his intoxication are in dispute. At the trial the jury found the defendant guilty of operating a motor vehicle upon a public highway while under the influence of intoxicating liquor. Defendant is here on appeal from the conviction.

Appellant at the outset in his argument contends that no proper plea was entered upon the minutes of the court as expressly provided for by Sec. 4782, SD Rev. Code of 1919, and further that there was no record of any of the minutes of the court; hence, the settled record as kept by the clerk does not disclose the entering of a plea to the information. We do not believe that, where the accused takes part in all the proceedings in the court as the record in this case discloses, he is now in a position to claim error. Without further reviewing the proceedings in this opinion as to just what took place, we are thoroughly satisfied that the case of State v. Reddington, 64 N.W. 170, is controlling and that the failure of the record to affirmatively show arraignment and plea does not entitle the appellant to a new trial. See, also, Hack v. State, 141 Wis. 346, 45 LRA, NS, 664; Dutton v. State, 123 Md. 373, 91 A. 417, Ann. Cas. 19160, 89; State v. Gould, 261 Mo. 694, Ann. Cas. 1916E, 855.

Appellant’s first eight specifications of error in assignment No. 1 relate to the trial court’s ruling on evidence. We do not think that the rulings were prejudicial. In order to present those alleged as errors in as brief a space as possible we will state that the questions asked were to elicit whether or not the appellant appeared to be intoxicated; also, whether he appeared to be slightly intoxicated or very much intoxicated; further, what physical acts he displayed. To the questions propounded there were answers that lie seemed to be intoxicated; that he talked “funny”; that he talked like he was intoxicated, that he staggered when he got out of the car and that he talked, of course,” thick lipped.” We are not of the opinion that the witnesses, who were present at the time in question and who described the appearance, conduct and conversation of the appellant, should be precluded from testifying to the matters disclosed in the record and we do not believe that it was error under the record. State v. Jenkins, 203 Iowa 251, 212 N.W. 475; State v. Michelski, and Butler v. State, 34 Okl. Cr. 239, 245 P. 1004. See, also, State v. Blackwood, 162 La. 266, 110 So. 417, and, State v. Wheelock, 218 Iowa 178, 254 N.W. 313.

Appellant complains that Exhibit “A,” a bottle supposedly containing alcoholic liquor or gin, was received in evidence over the following objection: “Objected to as incompetent, irrelevant and immaterial, and no foundation has been laid for the introduction of the same. It is not shown that this bottle was ever in the possession of Mr. Dale or that he knew it was in the car.” Appellant in his argument now urges that there is no testimony to show that there was liquor in the bottle when it was picked up and that from the time ‘it was picked up until it was produced at the trial, its possession had not been sufficiently accounted for. We do not think that the appellant is entitled to sustain error under the objection urged in the trial court. If the appellant had made his objection wide enough to include the possession of Exhibit “A” from the time it was picked up until it was marked for identification in the court, there would have been opportunity for the state to account fort its possession and, if it failed to do so, then the evidence might have been rejected by the trial court. We do not believe that the trial court erred in admitting Exhibit “A” under the objection interposed.

Appellant excepted to certain instructions given to the jury covering our statute, Ch. 251, Title 5, § 63, page 317, SD Laws 1929, which prohibits a person from operating or attempting to operate a motor vehicle while under the influence of liquor, and which instruction is as follows: “You are instructed that under a charge of operating a motor vehicle while under the influence of liquor, it is not essential to the existence of the offense that the driver of the automobile should be so intoxicated that he cannot safely drive a car. The expression ‘Under the influence of liquor’ covers not only all well known and easily recognized conditions and degrees of intoxication, but any abnormal or physical condition which is the result of indulging in any degree in intoxicating liquor and which tends to deprive him of that clearness of intellect and control of himself which he would otherwise possess.” The instruction excepted to seems to be clear and concise and to us it does not seem prejudicial to any of the appellant’s substantial rights. An Iowa statute (Code 1931, § 5027) relating to the operating. of a motor vehicle upon a highway uses the following language: “while in an intoxicated condition.” The Iowa Supreme Court, in dealing with an instruction attempting to define that phrase in State v. Wheelock, 218 Iowa 178, 318, said: “Under the laws of the State of Iowa a person is in an intoxicated condition in a legal sense when he is so far under the...