State v. Fitzpatrick
| Decision Date | 31 December 1924 |
| Docket Number | No. 25747.,25747. |
| Citation | 267 S.W. 905 |
| Parties | STATE v. FUTZPATRICK. |
| Court | Missouri Supreme Court |
Appeal from Circuit, Christian County; Fred Stewart, Judge.
Earl Fitzpatrick was convicted of driving an automobile while intoxicated, and he appeals. Affirmed.
G. Purd Hays, of Ozark, for appellant.
Jesse W. Barrett, Atty. Gen. (Ellison A. Poulton of Canton, of counsel), for the State.
Statement.
On October 24, 1923, the prosecuting attorney of Christian county, Missouri, filed in the circuit court of said county, a verified information, which, without caption and signature, reads as follows:
"Omer E. Brown, prosecuting attorney within and for the county of Christian, in the state of Missouri, informs the court that on or about the — day of October, A. D. 1923, at the said county of Christian, state aforesaid, Earl Fitzpatrick did then and there unlawfully and willfully and feloniously, drive an automobile while intoxicated against the peace and dignity of the state."
Appellant waived a formal arraignment, and entered a plea of not guilty. He was tried before a jury and, on January 30, 1924, the following verdict was returned:
Motions for a new trial and in arrest of judgment were filed and overruled. Defendant was sentenced, judgment entered, and an appeal granted him to this court.
We have carefully read the transcript and briefs of Counsel. The statement made by counsel for the state is substantially correct, and is adopted as our statement of the facts.
The evidence introduced by the state tended to prove the following: That on the 20th day of October, 1923, W. W. Daugherty was riding a horse about a half mile south of Nixa, Christian county, Mo., about 2 p. m. He was riding on the right side of the road going north, and met the appellant who was driving a car south on the same road, at about 25 miles an hour. A duck was fastened on the radiator, and a rabbit on each of the front fenders. Appellant did not slacken the speed at which he was driving the car, nor pull to the side of the road. Daugherty tried to pull his horse out of the way, but there was only 4 feet to the ditch on his side of the road, and his horse, becoming frightened, probably at the scent of the game, whirled around and was struck by the car. The horse was so badly injured that he had to be killed. Appellant seemed to be drunk; his breath smelled like whisky; he did not act or talk with sense, and asked Daugherty what the trouble was. He staggered around and cursed and appeared to be drunk.
The evidence introduced by the appellant tended to prove the following: That from 10 o'clock in the morning uhtil after the time of the accident appellant was not drunk, drank no whisky and had none in the car with him. The appellant testified in his own behalf that he had no whisky about him, and was not intoxicated the day of the accident.
The matters complained of, will be considered in the opinion.
Opinion.I. It is insisted by appellant that his demurrer to the evidence at the conclusion of the case should have been sustained. We have carefully read the testimony of all the witnesses, and have concluded that the state produced substantial evidence tending to show that appellant was intoxicated to some extent, while driving his automobile at a rapid rate of speed, without giving any part of the road, and striking Daugherty's horse. It was the peculiar province of the jury to pass upon the weight of the testimony. The jurors were face to face with the witnesses, and had a much better opportunity to pass upon the testimony than the members of this court. The trial judge, who heard the witnesses testify, overruled the demurrer to the evidence, the motion for a new trial, and sustained the verdict.
The fact that defendant was driving his car at the rate of 25 miles per hour, without giving any part of the road, with a rabbit on each of the front fenders and a duck fastened on the radiator, were matters to be considered by the jury, in addition to the fact that whisky was smelled on defendant's breath, and his conduct indicated he was under the influence of intoxicating liquor. It is true appellant's witnesses gave it as their opinion that he was not intoxicated, that he drank no whisky, and that he had none in the car. It was the province of the jury to weigh this testimony in connection with all the facts in the case. Since it is made a criminal offense for a man to have intoxicating liquor in his possession as a beverage, it is manifest that a person in possession of same would not likely proclaim such possession from the house tops. The fact that these witnesses did not see him drink, or have whisky in his possession, or that they thought he was not intoxicated, were matters which the jury were to consider in connection with the other facts stated. Aside from the foregoing, the jury might have disbelieved said witnesses, and reached the conclusion that the testimony offered by the state was trustworthy.
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