State v. Hayden

• Decision Date: 03 November 1928
• Docket Number: 28,546
• Citation: 126 Kan. 799,271 P. 291
• Parties: THE STATE OF KANSAS, Appellee, v. TAYLOR HAYDEN, Appellant
• Court: Kansas Supreme Court

271 P. 291

126 Kan. 799

THE STATE OF KANSAS, Appellee, v. TAYLOR HAYDEN, Appellant

No. 28,546

Supreme Court of Kansas

November 3, 1928

Decided July, 1928.

Appeal from Johnson district court; GARFIELD A. ROBERDS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. INTOXICATING LIQUORS--Driving While Under Influence--Sufficiency of Proof. In a prosecution for driving an automobile on the highway while under the influence of intoxicating liquor it is not necessary for the state to charge or to prove that the defendant was "drunk," as that term is ordinarily understood.

2. SAME--Instructions--Sufficiency. An instruction, as favorable to defendant as he is entitled to have it under the statute gives him no cause for complaint, although considered as an abstract definition it may be somewhat inaccurate.

3. CRIMINAL LAW--Instructions--Weight of Evidence Affecting Credibility--Necessity for Request. When on cross-examination, questions are asked, the obvious purpose of which is to affect the credibility of the witness, and no objection is made to such questions, and the court gives general instructions on the weight to be given to the evidence, the fact that the court does not, of its own accord, give a special instruction respecting the evidence brought out by such cross-examination, when none is requested, does not constitute reversible error.

4. SAME--Instruction as to Alibi--Necessity for Request. When defendant offers evidence in the nature of an alibi, the fact that the court did not give a special instruction pertaining to such evidence, when none is requested, is not error.

5. SAME--Instructions--Inappropriate Nonprejudicial Instruction. The fact that an instruction given is inappropriate under the evidence does not constitute error unless it is prejudicial.

6. SAME--Verdict--Certainty. A form of verdict susceptible of two meanings, in view of the language of the information, is not objectionable when, in accordance with either meaning, the defendant is guilty under the same statute.

A. J. Herrod, of Kansas City, and S.D. Scott, of Olathe, for the appellant.

William A. Smith, attorney-general, and Howard E. Payne, county attorney, for the appellee.

OPINION

HARVEY, J.:

This is a criminal prosecution. The information charged that defendant unlawfully drove "a motor vehicle in, upon and over the public highways . . . while under the influence of intoxicating liquor and while in a state of intoxication." The jury found him "guilty of the offense charged in the information." He has appealed.

The evidence, tending to support the prosecution, was as follows: One Sunday, soon after noon, W. F. Wilkerson and his wife, who reside at Spring Hill, started to drive in their Buick car from their home to Baldwin. When about four miles east of Gardner a rapidly driven car overtook them, turned around them, and in doing so cut in so close to the Wilkerson car as to strike the front end of it and throw it into the ditch. Mrs. Wilkerson got a good look at the driver of the car which struck them, and identified him as being the defendant. A Doctor Zumbrun, who was driving near, observed the license number on the car which caused the trouble, and gave it to Mrs. Wilkerson, who wrote it down. Wilkerson, with some help, got his car out of the ditch and drove to Gardner. There he located the car bearing the license number Mrs. Wilkerson had written down. It was at defendant's home, and was still hot from driving. He inquired for defendant. His wife stated that he was upstairs in bed and not in condition to be seen. She later permitted the marshal to go to his room. He was taken into custody and to the police station, and soon thereafter to the sheriff's office, where he gave bond. Several witnesses, including the peace officers, who saw defendant when he was taken into custody, or soon thereafter, testified that he was drunk, and that this was evidenced by his appearance, his movements and his talk, which was voluble and in part profane. There was evidence, also, that the car which forced the Wilkerson car into the ditch was "weaving" from one side of the road to the other as it approached them, and continued to do so after it passed them.

The pertinent portion of the statute on which the prosecution was based reads as follows:

"It shall be unlawful for any person under the influence of intoxicating liquor . . . to drive . . . any automobile . . . upon any public . . . highway . . . within the state of Kansas." (R. S. 21-2160.)

Appellant first complains of an instruction given which reads as follows:

"You are instructed that drunkenness is the condition of a man whose mind is affected by the immediate use of intoxicating drinks. This condition presents various degrees of intensity ranging from simple exhilaration to a state of utter unconsciousness and insensibility. In the popular phrase, the term drunkenness is...