State v. Jacques, 117-71

• Decision Date: 03 October 1972
• Docket Number: No. 117-71,117-71
• Citation: 296 A.2d 246,130 Vt. 427
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Lawrence JACQUES.

Page 246

296 A.2d 246

130 Vt. 427

STATE of Vermont v. Lawrence JACQUES.

No. 117-71.

Supreme Court of Vermont.

Oct. 3, 1972.

Kimberly B. Cheney, State's Atty., for plaintiff.

Robert J. Kurrle of Richard E. Davis Associates, Barre, for defendant.

Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ. BARNEY, Justice.

This is an appeal from a conviction of driving while intoxicated. The respondent was also charged with careless and negligent driving, but the State entered a nolle prosequi to this charge during trial. The respondent advances a number of claims of error which he asserts are sufficiently prejudicial to require reversal. Trial was by jury.

The matter began when two witnesses operating a pick-up truck in Barre were confronted by another truck coming at them in their traffic lane at a high rate of speed. A collision was narrowly averted and the witnesses continued on their errand. Returning along the same street shortly after, they came upon an accident in which this same truck had turned over. Just before their return a taxi driver had stopped at the scene and found the respondent sitting on the lawn next to the overturned truck. At the time no one else was at the scene, and the taxi driver left to get word to the respondent's brother of the accident and that the respondent seemed to be hurt. The brother immediately went to the scene, picked up the respondent and took him to the hospital. Meanwhile, a uniformed constable of Barre Town had already arrived and talked with the respondent, whom he found staggering around. The respondent told this officer that there had been nobody with him. The respondent smelled of intoxicants and the officer testified that he was under the influence of intoxicating liquor. The respondent was noisy and the officer attempted to quiet him down. He found two bottles of beer in a six-pack container about twenty feet from the truck and the respondent came up and took the officer, who was uniformed, by the arm and said, 'Get rid of that before the cops come.'

At the hospital it was apparent to the two nurses and the doctor in attendance that the respondent had been drinking. He himself acknowledged the consumption of 'a couple of beers'. One of the nurses stated that the respondent was under the influence of intoxicants when she saw him, another qualified her opinion by saying that he was under the influence to some degree. The accident had happened somewhere about 8:30 P.M. When the respondent was seen by the doctor at about 11 P.M. the doctor stated that he must have been drinking 'because you could smell it.' He also stated that although at that time he could not tell to what degree what he had had to drink would have affected his behavior, it would have had some effect. All of this evidence was available for the jury in arriving at its verdict.

The respondent first claims error in that, he says, the state's attorney made an opening statement saying that the officer reported that the respondent had said there was nobody else in the truck with him. When the actual evidence came in it might be said to be a little more equivocal than that. This is, of course, available to the respondent for argument to the jury as to failure of the state to establish the case it claimed. But it is hardly prejudicial error, in light of the fact that the respondent acknowledged to the doctor that he was driving the truck. An examination of the officer's testimony discloses that it does, in fact, represent evidence that the respondent acknowledged he was alone in the truck. There is no error.

The respondent complains now of the court's failure to instruct the jury regarding the amount of alcohol required to place the respondent under the influence of intoxicating liquor. Whether or not any such instruction may ever be proper, the respondent's position is compromised by his failure to make known to the court any objection at all to the charge. To the contrary, he stated he was satisfied with the charge as given. Thus, he has no grounds for complaint here, absent grave error. State v. Morrill, 127 Vt. 506, 510-511, 253 A.2d 142 (1969).

As to the gravity of the claimed omission, it should be pointed out that if the case is not one involving the issues of 23 V.S.A. §§ 1202-1205, the concern of 23 V.S.A. § 1201 and its predecessors (see annotations under former 23 V.S.A. § 1183) is with the fact of being under the influence, whatever the measure of alcoholic beverages necessary to produce that physical state. Evidence of objective symptoms supporting the existence of that state may be sufficient. See State v. Magoon, 128 Vt. 363, 367, 264 A.2d 779 (1970). Thus the claimed shortage in the instructions was unfounded, in any event.

The respondent complains of the failure of the trial court to conduct a hearing on the granting of a nolle prosequi on the issue of the careless and negligent driving count. It is conceded that no objection to the ruling was made on behalf of the respondent when it was made. The respondent does have a right to a hearing when the nolle prosequi can be entered only with the approval of the court. State...