State v. Paschal, 589

Citation253 N.C. 795,117 S.E.2d 749
Decision Date20 January 1961
Docket NumberNo. 589,589
CourtNorth Carolina Supreme Court
PartiesSTATE, v. Clyde Diamond PASCHAL.

Atty. Gen. T. W. Bruton and Asst. Atty. Gen. Ralph Moody, for the State.

E. L. Alston, Jr., Greensboro, for defendant, appellant.

BOBBITT, Justice.

Defendant does not challenge the sufficiency of the evidence to support the verdict, but assigns as prejudicial error the admission, over his objection, of the following testimony of a State's witness, the arresting officer, on direct examination, viz.: 'I asked Mr. Paschal on the way to the Police Station if he knew about the blood test. And he stated that he did, and I asked him if he would like to take a blood test. He stated, 'no,' that he had taken one before and he didn't want one. ' The solicitor then asked: 'Did he take a blood test?' The witness answered: 'No, sir, he did not.'

Defendant did not testify, either on direct or cross-examination, as to what conversation, if any, he had with the arresting officer with reference to taking a blood test.

The State's evidence, which consisted solely of the testimony of the arresting officer, tended to show: The officer stopped defendant on account of the manner (described in detail) in which defendant was operating his car. Defendant, when he walked out in front of the patrol car, 'weaved and wobbled.' His speech was 'slurred' and the odor of alcohol was upon his breath. In defendant's car, there was a six-pack carton of Budweiser Beer, containing four full bottles and one empty bottle, and also a partially filled bottle (containing thirteen ounces) of vodka. In the officer's opinion, defendant was highly intoxicated at the time of his arrest.

Defendant denied he was under the influence of intoxicating liquor when arrested. He told the arresting officer and testified at trial that the only alcoholic beverage he had drunk was 'two beers.' A witness for defendant testified that he, not the defendant, had taken the drink from defendant's pint bottle of vodka at a service station some two hours or more prior to defendant's arrest.

Uncontradicted evidence was to the effect that defendant was operating a motor vehicle upon a public street. The crucial question was whether defendant was doing so while under the influence of intoxicating liquor.

Assuming the blood specimen is obtained at or near the pertinent time and identified and traced until chemical analysis thereof is made, this Court has held: In a prosecution under G.S. § 20-138, testimony of a qualified expert (1) as to the making and results of a chemical analysis of such blood specimen to determine the alcoholic content thereof, and (2) as to the effects of certain percentages of alcohol in the blood stream, is competent. State v. Moore, 245 N.C. 158, 95 S.E.2d 548; State v. Henderson, 245 N.C. 165, 95 S.E.2d 594; State v. Willard, 241 N.C. 259, 84 S.E.2d 899; State v. Collins, 247 N.C. 244, 100 S.E.2d 489. In each of these cases, the blood specimen was obtained for chemical analysis with the defendant's consent.

In Osborne v. Colonial Ice Co., 249 N.C. 387, 106 S.E.2d 573, a proceeding under the Workmen's Compensation Act, the employee was the driver of one of the cars involved in a collision and died on the way to the hospital. Shortly thereafter, the Coroner procured three ounces of blood from the employee's veins and chemical analysis thereof was made. The testimony of a qualified expert as to the making and results of such analysis and as to the effects of the disclosed percentage of alcohol in the employee's blood stream was held competent and sufficient to support the Industrial Commission's finding that the employee was intoxicated when the collision occurred.

In State v. Cash, 219 N.C. 818, 15 S.E.2d 277, 278, the defendant in a prosecution for murder pleaded insanity at the time of the homicide due to the continued use of liquor, morphine and other opiates. While in jail, specimens of his blood and urine were taken for chemical analyses to determine the presence or absence of alcohol or morphine in his system. On appeal, defendant's contention that testimony as to the results of such analyses violated his constitutional right against compulsory self-incrimination, North Carolina Constitution, Article I, Section 11, was disposed of on the ground 'the record fails to disclose any compulsion on the part of the officers in obtaining specimens of the defendant's blood and urine.'

No test of defendant's blood was made. Hence, the competency of expert testimony as to the results of a chemical analysis of a blood specimen obtained without consent, by force or othewise, is not presented. In this connection, see Rochin v. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183, 25 A.L.R.2d 1396; Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448; Annotation, 'Requiring submission to physical examination or test as violation of constitutional rights,' 25 A.L.R.2d 1407.

The established rule in this jurisdiction is that '(t)he scope of the privilege against self-incrimination, in history and in principle, includes only the process of testifying by word of mouth or in writing, i. e., the process...

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8 cases
  • State v. Jackson
    • United States
    • Montana Supreme Court
    • December 14, 1981
    ...247 S.E.2d 475 (defendant may fear the test itself or may distrust the procedure or the competency of the testers); State v. Paschal (1961), 253 N.C. 795, 117 S.E.2d 749 (defendant feared he would have to pay for the test); Engler v. State (Okl.Crim.1957), 316 P.2d 625 (bona fide doubts as ......
  • Hill v. State
    • United States
    • Alabama Supreme Court
    • January 12, 1979
    ...silent); Stuart v. District of Columbia, 157 A.2d 294 (D.C.Mun.App.1960) (exercise of statutory right to refuse); State v. Paschal, 253 N.C. 795, 117 S.E.2d 749 (1961) (unwilling if defendant had to pay for test); City of Columbus v. Mullins, 162 Ohio St. 419, 123 N.E.2d 422 (1954) (unwilli......
  • Sandy City v. Larson
    • United States
    • Utah Supreme Court
    • February 4, 1987
    ..., 247 S.E.2d 475 (defendant may fear the test itself or may distrust the procedure or the competency of the testers); State v. Paschal (1961), 253 N.C. 795, 117 S.E.2d 749 (defendant feared he would have to pay for the test); Engler v. State (Okl.Crim.1957), 316 P.2d 625 (bona fide doubts a......
  • State v. Strickland, 24
    • United States
    • North Carolina Supreme Court
    • January 30, 1970
    ...between compulsory testimonial evidence and compulsory physical disclosure. The North Carolina view is summarized in State v. Paschal, 253 N.C. 795, 117 S.E.2d 749, by Bobbitt, J. (now C.J.) as 'The established rule in this jurisdiction is that '(t)he scope of the privilege against self-inc......
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