State v. Glavkee

• Decision Date: 10 December 1965
• Docket Number: No. C,C
• Citation: 138 N.W.2d 663
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. Carl J. GLAVKEE, Defendant and Appellant. r. 329.
• Court: North Dakota Supreme Court

Page 663

138 N.W.2d 663

STATE of North Dakota, Plaintiff and Respondent, v. Carl J. GLAVKEE, Defendant and Appellant.

No. Cr. 329.

Supreme Court of North Dakota.

Dec. 10, 1965.

Syllabus by the Court

1. Every person accused of a crime is entitled to a fair trial according to the principles embodied in the Constitution and the laws of the State. If substantial rights of the defendant have been prejudiced, a new trial must be granted.

2. Evidence that a witness was intoxicated at the time of the event concerning which he testifies, bears on his capacity for accurate observation and memory. It is proper to show such intoxication as a reflection upon the credibility of such witness.

3. It is not permissible to show, for purpose of impeachment, that a witness was accused of or arrested for a crime of which he is not shown to have been convicted.

4. Admission of evidence remote in time from the main event rests largely in the trial court's discretion.

5. The question of remoteness of evidence is to be decided by the trial court as a matter of discretion, and any determination so made is not reviewable on appeal unless it appears that there was a palpable abuse of such discretion.

6. To be guilty of operating a motor vehicle under the influence of intoxicating liquor, in violation of Section 39-08-01(b), N.D.C.C., it is not necessary that the driver be so intoxicated that he cannot drive. The expression 'under the influence of intoxicating liquor' covers not only the wellknown and easily recognized conditions of intoxication but also includes any abnormal mental or physical condition which is the result of indulging, in any degree, in intoxicating liquor which tends to deprive such person of that clearness of intellect and control of himself which he otherwise would possess.

Albert A. Wolf, State's Atty., Bismarck, for plaintiff and respondent.

Thompson, Lundberg & Nodland, Bismarck, for defendant and appellant.

STRUTZ, Judge.

The defendant was convicted in the county court of increased jurisdiction of Burleigh County of the crime of operating a motor vehicle on the highway while under the influence of intoxicating liquor. He has appealed from the judgment of conviction, and has assigned two specifications of error in support of his appeal.

The record discloses that, on the afternoon of July 4, 1964, the defendant, with his wife, drove to Regan, North Dakota, for the purpose of picking up one Charles Keator who, on occasion, had worked as the defendant's hired hand on the farm. They found Keator at a bar in Regan, and the defendant and his wife spent some time at this establishment. The wife admitted drinking some alcoholic beverages, but the defendant denies having had anything to drink in Regan. He does admit that he spent approximately three hours in the bar, but contends that this time was spent visiting and playing cards.

After leaving the bar, the defendant, with his wife and his hired hand, started home. As they approached the city of Wilton, the hired man requested that the defendant stop at a bar for the purpose of allowing him to go to a toilet. All three went into the bar and, according to the defendant's testimony, they remained there for but a short period of time. While in the bar, the defendant admits having 'one shot of whiskey,' which he claimed was purchased for him by someone he did not know. The defendant testified that he did not remain in the bar any longer because he started having pains in his chest. He thereupon went out to the car and waited for his wife and the hired hand, who remained in the bar for a while longer. Then all three started for home, with the defendant driving. While proceeding south on Highway No. 83, south of Wilton, the defendant was stopped by a highway patrolman. The defendant's testimony is that all three of the occupants of his car were put into the patrol car and taken to Bismarck without being advised that he was under arrest or without being advised of any charge being made against him. The defendant admits that his car may have been traveling very slowly and weaving from side to side on the highway. But he explains this by saying that he was just trying out a new used car which he was not accustomed to driving and that if he did drive over forty miles an hour, the car would start to shimmy. He further testified that at one time he did drive over the centerline of the highway, but that that was for the purpose of avoiding a skunk in his lane of traffic. The defendant and his two witnesses denied everything that the highway patrolman and the police officer who saw them at the police station in Bismarck testified to as to their condition and their conduct.

We have carefully read the entire record. We believe there is ample evidence to justify the verdict of the jury. In fact, it is impossible to read this record without coming to the conclusion that the jury could have reached no other verdict. But the defendant does very strenuously contend that, while the evidence may have been legally sufficient to sustain the verdict of the jury, the trial court committed certain errors in the reception and the exclusion of evidence which were highly prejudicial to his case, and that because of such alleged errors he should be granted a new trial.

The defendant sets out the alleged errors on the part of the trial court in two specifications of error, as follows:

'1. That the trial Court erred in allowing witnesses for the State to testify concerning the alleged intoxicated condition of two witnesses for the Defendant, while at the same time not allowing the Defendant to show that criminal complaints against the same two witnesses for public intoxication were dismissed. That the credibility of the Defendant's witnesses as to his intoxication was thereby attacked, while at the same time the Defendant was not allowed to show the dismissal of these charges against these witnesses, which information the jury should have had so that the credibility of the witnesses for the State could have been better evaluated.

'2. That the Defendant's offer of proof as to events occurring while the Defendant was taken to his home were germane to the issues of the lawsuit and should have been admitted by the trial Court. That the prosecuting officer had stated that the Defendant was still intoxicated at the time he was taken home and therefore how he handled himself and how another patrolman who took him to his home treated him were events having a bearing upon the alleged intoxication of the Defendant since these events had a bearing upon the credibility of the State's witnesses in giving their opinion that the Defendant was intoxicated and the jury, in order to properly...