State v. Hanson

• Decision Date: 21 November 1955
• Docket Number: Cr. 265
• Citation: 73 N.W.2d 135
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. Arnold HANSON, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 135

73 N.W.2d 135

STATE of North Dakota, Plaintiff and Respondent, v. Arnold HANSON, Defendant and Appellant.

Cr. 265.

Supreme Court of North Dakota.

Nov. 21, 1955.

Syllabus by the Court.

1. Where an accused voluntarily takes the witness stand in his own behalf, he waives his constitutional privilege of not answering questions that may tend to convict him of the crime for which he is on trial and he subjects himself to the same rules that govern other witnesses as to cross-examination and when he offers testimony upon any fact, the same constitutes a waiver as to all other relevant facts because of the necessary connection between them all.

2. When a defendant takes the witness stand and testifies on direct examination, or examination in chief, to facts which by inference show that he was not under the influence of intoxicating liquor, he may be cross-examined as to conversations with the arresting officer concerning a blood test, such testimony being relevant to the issue and being a subject which he opened up himself.

3. The expression, 'under the influence of intoxicating liquor', has reference to consumption of intoxicating liquor which disturbs the mental and physical faculties of a person so that such person is no longer in his or her natural or normal condition, and when a person is so affected by intoxicating liquor as not to possess that clearness of intellect and control that such person would otherwise have, and which lessens such person's ability in any appreciable degree to handle his automobile, such person is 'under the influence of intoxicating liquor.' This is not dependent upon the amount of intoxicating liquor consumed, but upon indulgence in any degree of intoxicating liquor which affects the accused's ability to operate a motor vehicle.

Aaron Aronson, Fargo, for defendant and appellant.

Lyle E. Huseby, State's Atty., and Frank T. Knox, Asst. State's Atty., Fargo, for plaintiff and respondent.

JOHNSON, Judge.

On November 17, 1954, in the county court of increased jurisdiction of Cass County, North Dakota, the defendant was convicted by a jury of the crime of operating a motor vehicle while under the influence of intoxicating liquor. He has appealed.

On August 27, 1954, between 8:00 and 8:30 p.m., the defendant was driving his automobile on Highway Ten in an easterly direction approximately twenty-seven miles west of Fargo, North Dakota. Highway Patrolman Koehn was also driving in the same direction behind the defendant. He noticed that the defendant swung across the center line of the highway and then onto the shoulder of the highway a couple of times. His attention was attracted to the defendant's manner of driving by a cloud of dust created by his car each time he reached the south shoulder of the highway. The swerving manner in which the defendant drove his car caused the patrolman to stop him, arrest him and transport him to the county jail at Fargo, North Dakota.

The defendant has assigned five specifications of error on which this appeal is based. Four of the specifications there relate to rulings of the trial court in the admission of evidence. One relates to the court's instructions to the jury relating to the definition of intoxicated or under the influence of intoxcating liquor. We discuss these as presented by the appellant.

The first specification cited relates to a question put to Mr. Koehn, the highway patrolman:

'Now, Mr. Koehn, did you have an opportunity to observe whether or not the defendant was under the influence of intoxicating liquor? Answer 'Yes' or 'No.' A. Yes.

'Q. And what is your opinion as to whether or not he was under the influence of intoxicating liquor?'

This was objected to as 'calling for an opinion; not based on sufficient facts; not having any foundation for showing.'

'The Court: Well, of course, the rule is that opinion isn't admissible. On that question, overruled.

'Mr. Knox: Go ahead. A. That he was under the influence of intoxicating liquor.'

The defendant presented no argument in his brief on appeal on this specification. Errors assigned in brief, but not argued, may be deemed abandoned. Kelly v. Pierce, 16 N.D. 234, 112 N.W. 995, 12 L.R.A.,N.S., 180; Olson v. Armour & Co., 68 N.D. 272, 276, 280 N.W. 200, 201.

The issue here involved is whether or not the defendant was under the influence of intoxicating liquor at the time he was operating his motor vehicle, on his way to Fargo, on the evening of August 27, 1954. The patrolman had testified to the facts and circumstances that indicated that the defendant was under the influence of liquor at the time of his arrest. He described how the defendant had driven just prior to his arrest. Upon the arrest of the defendant and while observing him, the officer detected the smell of alcohol from his breath. The defendant's eyes were starey and when he got out of his car, he was unsteady when he walked and his body swayed. The patrolman suggested that the defendant had 'quite a bit to drink' to which he said the defendant responded that he did not have too much to drink. He further testified the defendant told him that he had a 'fifth' from ten o'clock in the morning until the patrolman saw him.

The defendant took the stand in his own behalf. He admitted that he had had 'two shots of whiskey' between two and three-thirty that day. He denied that he had any intoxicating liquor after that time. He denied that he had told the patrolman that he had had a fifth of whiskey; that he had said:

'I says that if this would have happened a week ago when I was on vacation, I would have told you probably a fifth of whiskey.'

He denied that on the way to Fargo, a distance of about twenty-seven miles he had had any conversation with Patrolman Koehn regarding a blood test. On cross-examination the defendant was asked:

'Q. Well, now, didn't you state during that trip into town to Officer Koehn that you could not take the blood test because 30% is drunk, and you had probably 50% in your blood because you had been drinking for ten days?

'Mr. Aronson: I object, Your Honor, please. That question is not a matter that was brought up in direct examination.

'The Court: Well, the rule is that when the defendant takes the stand, he can be questioned on anything that took place--any part of the conversation. The state could not bring this up except on cross-examination where it's permissible on two grounds, one being for impeachment purposes and the other as part of the res gestae.

'Mr. Aronson: It's not a matter brought out in direct examination.

'The Court: Well, that's tru--Well, you mean on direct.'

The question was then repeated and the defendant answered:

'A. No, I did not make that statement.'

It is further specified that the court erred in overruling the defendant's objection to the following question:

'Q. Did you state at that time to Mr. Koehn, 'If you will not put me in jail, I will take the blood test'?

'Mr. Aronson: I object to the question as bringing out testimony that's not been shown, and it's done for the purpose of prejudice--it's very prejudicial.

'The Court: Overruled. It's admissible for the purpose of impeachment.'

The defendant again denied having made the statement.

The defendant was then asked if he had been taken to St. John's Hospital for a blood test, and that he had refused to take it; that he had refused to sign the consent for it. The defendant admitted that he was taken to the St. John's Hospital but denied that he had agreed to take the test. At the conclusion of this testimony motion was made to strike it on the ground that it was prejudicial and brought out to influence the jury. The motion was denied. If this was proper cross-examination, then the motion to strike was properly denied.

The early case of State v. Kent, 5 N.D. 516, 67 N.W. 1052, 35 L.R.A. 518, sets out in broad outline the general scope allowed in cross-examination of a defendant. There are numerous ways of impeaching the credibility of a witness, and the defendant was a witness in his own behalf, by cross-examination, by proving previous contradictory statements or acts, by producing record of conviction of a crime, by adducing generally evidence tending to show that the witness is unworthy of belief. Evidence impeaches a witness when it assails his general credibility or otherwise weakens the force of his testimony and detracts from the weight to be given it. In State v. Kent, supra, 5 N.D. at pages 547-548, 67 N.W. at page 1060, it was said:

'But, while the strict rule limits the cross-examination to the subjects about which the witness testified in chief, this does not mean the particular facts to which the witness directed his testimony. ...