State v. Glanzman

• Citation: 202 P.2d 407,69 Idaho 46
• Decision Date: 26 January 1949
• Docket Number: 7468
• Parties: STATE v. GLANZMAN
• Court: Idaho Supreme Court

202 P.2d 407

69 Idaho 46

STATE v. GLANZMAN

No. 7468

Supreme Court of Idaho

January 26, 1949

Appeal from District Court, Third District, Ada County; Charles E Winstead, Judge.

Affirmed.

Geo. H van de Steeg, of Nampa, for appellant.

In order to sustain a conviction of the crime of driving a motor vehicle while under the influence of intoxicating liquor, the State must establish, not merely that the defendant had drank intoxicating liquor, but that he was so under the influence of intoxicating liquor that his judgment and/or his ability to properly drive the vehicle was impaired. This is the test adopted by the courts. I.C.A. 48-502; Packard v O'Neil, 45 Idaho 427, 262 P. 881, 56 A.L.R. 317; 42 A.L.R. note at p. 1503; Stevens v. People, 97 Colo. 559, 51 P.2d 1022; Rinehart v. People, 105 Colo. 123, 95 P.2d 10.

The judgment of the court in imposing a jail sentence, under all of the evidence, was excessive and erroneous, in view of the fact that there was no accident, no injury to person or property, and that this was a first offense on the part of this defendant, and that this defendant operated an 80 acre farm for his widowed mother. Campbell v. State, 83 Okl.Cr. 108, 173 P.2d 584.

Robert E. Smylie, Atty. Gen., and J. R. Smead, Asst. Atty. Gen., for respondent.

Testimony stating the appearance and conduct of a defendant as derived by the senses of sight, smell and hearing, and that the witness concluded that the defendant was under the influence of intoxicating liquor, is direct evidence of the fact at issue. It is not circumstantial evidence. U. S. v. Greene, D.C., 146 F. 803, 824; Jones, Evidence, 4th Ed., p. 673, and p. 672, Note 10; State v. Cather, 21 Iowa 106, 96 N.W. 722; Holland v. Zollner, 102 Cal. 633, 36 P. 930, 37 P. 231; Choice v. State, 31 Ga. 424, 467; McKelvey, Evidence, 2d Ed., p. 220, seq. 132.

Givens, Justice. Holden, C. J., Porter and Hyatt, JJ., and Taylor, District Judge, concur.

OPINION

Givens, Justice.

Appellant's appeal is from a conviction of the crime of driving a motor vehicle while under the influence of intoxicating liquor, alleged to have occurred at the southwest outskirts of Boise at the intersection of Highway 30 running east and west, and Orchard Avenue extending from the Highway south, on December 30, 1947.

Appellant assigns as error the insufficiency of the evidence to sustain the verdict; that it was error for the court to give Instruction No. 5 and refuse to give appellant's requested Instructions Nos. II and IV; that certain remarks of the trial court were prejudicial; and that four months in the County jail with eligibility to apply for a parole after serving sixty days, was excessive punishment.

The circumstances surrounding appellant's arrest and his then condition are substantially as follows:

Deputy Sheriff Jim Brunt testified that on the evening of December 30, 1947, he was in uniform and on his way to Franklin High School to direct traffic at a basketball game; that as he turned south on Orchard Avenue, he noticed a car coming toward him on his side of the road. He pulled out of the way of the car and started to go behind a truck that was parked across Orchard Avenue -- which had caused the other car to be on the wrong side of the road -- when the truck started to back up. The truck had no lights and was parked practically across the road and when it started to back up, Mr. Brunt put his car in reverse and yelled at the driver, who then pulled forward almost off the oiled part of the road. Mr. Brunt went up to the cab, opened the door and told the man to give him his keys; that he was in no condition to be driving a car, then he called for a State Officer to come to the scene because he wanted a witness to corroborate his opinion as to the man's condition, which was befuddled, and there was an odor of alcohol in the cab. Mr. Brunt testified, in his opinion, the odor was from beer. After Officer Bennett arrived, they told the man to get out of the cab and when he protested, they told him they would take him out. He was belligerent and Mr. Brunt told him he was in no condition to operate a truck, that he was intoxicated. Mr. Brunt testified the man was unsteady on his feet, could not control his movements and could not walk without assistance. The officers took the man to the Sheriff's office in Boise, then to jail. He would not give his name or produce his driver's license, and made some disturbance after he was placed in jail. No beer was found in the truck.

Officer Bennett testified that the officers asked the man two or three times to get out of the cab, and finally Mr. Bennett took him by the arm and he got out; that there was an odor of beer or whiskey or some alcoholic beverage when he helped the man out of the cab of the truck; that the man was kind of unsteady on his feet; that he couldn't stand still without leaning against something -- he was kind of wobbly; that he resisted when they tried to look at his driver's license at the office and when they took him upstairs to his cell; that he kicked the bars and made a disturbance. Officer Bennett testified that in his opinion the man was intoxicated.

Appellant testified he had been in Boise, drove out Highway 30 and stopped at Rusty's Inn and parked his truck; had a bowl of chili and cup of coffee and was there about 20 minutes; got in his truck and started to back up and didn't notice a car back of him. Said he had had three bottles of beer to drink while he was in Boise -- none at the Inn. Also said he arrived in Boise about 3:00 or 3:30 p. m. and was there two hours and at the Inn fifteen or twenty minutes, but the officers stated it was almost dark, around seven-fifteen when they stopped him. Later appellant said he had three glasses of beer; that he was too badly fuddled up and didn't pay any attention to where the Sheriff's car was parked -- he couldn't remember. He also testified there were several cars parked near the Inn, but the officers testified there were only two. Appellant's testimony was conflicting as to where he parked and how far he pulled up and back across the road.

These composite circumstances were sufficient to justify the verdict, even though reasonable minds might differ as to the conclusion to be drawn therefrom, and it was within the province of the jury to reach the conclusion they did. Grooms v. State, 77 Okl.Cr. 448, 142 P.2d 862.

The court quoted the statute on driving while under the influence of intoxicating liquor ^[1] and thus amplified it:

"To constitute this crime, it is not necessary that the driver of the motor vehicle be shown to have been in any particular degree or state of intoxication, but only that such driver at the time charged had consumed intoxicating liquor to such an extent as to influence or affect his driving of the motor vehicle."

"Whether or not the driver of the motor vehicle was under the influence of intoxicating liquor is a question of fact for the jury to determine under the facts and circumstances disclosed by the evidence." Instruction No. 5.

Appellant requested the following instruction:

"You are instructed that the expression 'under the influence of intoxicating liquor' means that a person is so mentally or physically affected by alcoholic beverages that his judgment or ability to operate a car is to some degree impaired; it means that degree of indulgence in intoxicating liquor that he is deprived by reason thereof of that clearness of intellect and control of himself which he would otherwise have. The burden is upon the State to establish beyond a reasonable doubt that the defendant in this case, at the time and place alleged in the information, was 'Under the influence of intoxicating liquor', as above defined, to that extent that he was so mentally or physically affected thereby that his judgment or ability to operate his car was impaired." Requested Instruction No. II.

Appellant argues that Packard v. O'Neil, 45 Idaho 427, 262 P. 881, 56 A.L.R. 317, supports his position. Therein the court under the 1921 statute ^[2] approved this instruction:

"It is unlawful for any vehicle to be moved, run, or operated on the highways of this state by any person unable to control and properly operate the same with due regard to the safety of the public and other vehicles; and in all cases any person in a state of intoxication is deemed conclusively to be unable to control and operate the same. And if you find from the evidence that the defendant was, at the time of the accident, in a state of intoxication, then under the law he is conclusively deemed to have been unable to control and operate the automobile which he was driving."

The instruction was attacked on the ground there was no issue in the pleadings to warrant the instruction and that it was unconstitutional. While the court quoted with approval Huddy on Automobiles, which quotation contains the thought urged by the requested instruction herein, the present statute, Section 48-502, I.C.A. passed in 1927, does not connect the penalty of driving an automobile while under the influence of intoxicating liquor with the ability to control or operate the same as did the 1921 statute.

In Hasten v. State, 35 Ariz. 427, 280 P. 670, where the court was confronted with the exact conditions met herein, thus:

"It is appellant's claim that this means in effect 'under the influence of intoxicating liquor to the extent of impairing to an appreciable degree his ability to operate his car in the manner that an ordinarily prudent and cautious man, in the full possession of his faculties and using reasonable care, would operate a similar vehicle under similar conditions.' It is the contention of the state on the other hand, that the law means 'any influence of intoxicating...