State v. Johnson
| Decision Date | 26 January 1963 |
| Docket Number | No. 43182,43182 |
| Citation | 190 Kan. 795,378 P.2d 167 |
| Parties | STATE of Kansas, Appellee, v. Donald D. JOHNSON, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In the trial of a criminal case, where the defendant was charged with drunken driving, during the direct examination of the sheriff, certain erroneous testimony indicating that a blood test of the defendant had been taken and that the result of the test indicated intoxication, and where the test is not introduced in evidence, it is held that the prompt direction of the court for the jury to disregard the blood test and all reference to it was sufficient to invoke the rule that it is presumed the jury follows the instructions and directions of the court, and that the verdict convicting defendant was based upon the other ample evidence supporting the verdict.
Paul B. Watson, Jetmore, argued the cause and was on the briefs, for appellant.
Bradley Post, Meade, argued the cause and William M. Ferguson, Atty. Gen., was with him on the briefs, for appellee.
The appellant in this appeal was convicted of driving on Highway No. 54 while in an intoxicated condition, and appeals urging error.
At the outset, the appellee asserts that no service of abstract or brief has been made upon the attorney general as provided in all state cases under rule 9, of this court. Evidently the papers were served upon the county attorney. Appellee fails to cite any case in which failure to serve the attorney general has been considered fatal to a criminal appeal in which service had been made upon the county attorney. We would not say that such a failure might not be considered fatal. However, we shall overlook it at this time.
In the early morning hours, the appellant, referred to hereinafter as the defendant, was driving through the town of Plains in Meade county. A witness observed that defendant's truck weaved from side to side and called the city marshall. The two pursued defendant and stopped him. The marshall considered the defendant, intoxicated and took him to the county jail in Meade.
At the jail defendant was given at least three tests for sobriety before four witnesses. He was said at the trial to have been unable to perform satisfactorily the heel-to-toe test, the coin test and the finger-to-nose test.
At the time the city marshall stopped the defendant, he asked him what he had been drinking, and he replied, 'Whiskey.' There was also testimony by the marshall and other witnesses that defendant was red in the face and that his voice was slurred and unnatural at the time of the arrest.
There can be no doubt that ample evidence was introduced to convict the defendant of the crime charged. The only question in this case depends upon the fact that it seems defendant took a blood test. The matter was brought to the attention of the court and jury during the testimony of Sheriff Johnston as follows:
'The Court: He may not testify to the results of a blood test from this defendant.
'The Court: Objection sustained.
'Mr. Watson: The defense will not stipulate to the admission of an affidavit in evidence.
'Mr. Post: It was impossible for this gentleman to be here to testify, and we would like for you to examine that and see whether or not you would be willing to----
'Mr. Watson: I'll not stipulate to the admission of this test without the laboratory technician who conducted the test being present for cross-examination.
'Mr. Post: We will withdraw the offer of this affidavit.
'Mr. Watson: And Your Honor, I request that the sheriff's answer about this particular document be stricken from the record.
It was most unfortunate that the county attorney asked the question as he did, immediately after the court had advised that the sheriff would not be allowed to testify to the blood test. We do not say that he did it intentionally but we do feel that the county attorney should have been more cautious.
Upon the completion of the sheriff's testimony, a recess was taken and defendant asked for a mistrial because of the testimony of the sheriff as to the blood test.
The trial court refused the motion for a mistrial and the motion for...
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State v. Barney
...was offered. Absent evidence to the contrary, it is presumed that the jury followed the instructions of the court. State v. Johnson, 190 Kan. 795, 797, 378 P.2d 167 (1963). Barney also asserts Trimble's testimony regarding the police dispatch statement violated his rights under the Confront......
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State v. Foster, 44493
...and as such became his own analysis. He was the proper party to testify concerning the result of the analysis. * * *' In State v. Johnson, 190 Kan. 795, 378 P.2d 167, a blood alcohol report of the State Board of Health laboratory was offered during the testimony of the sheriff of Johnson Co......