State v. Poppenga
| Decision Date | 10 June 1957 |
| Docket Number | No. 9611,9611 |
| Citation | 76 S.D. 592,83 N.W.2d 518 |
| Parties | STATE of South Dakota, Plaintiff and Respondent, v. William POPPENGA, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Henry C. Mundt, Sioux Falls, for defendant and appellant.
Phil W. Saunders, Atty. Gen., Walter Mueller, Asst. Atty. Gen., Frank P. Gibbs, State's Atty., William F. Clayton, Deputy State's Atty., Sioux Falls, for plaintiff and respondent.
An information was filed in the municipal court of Sioux Falls on April 23, 1956, charging that the defendant on the preceding day committed the crime of drunken driving. On trial to a jury he was found guilty. Before judgment he moved for a new trial which was denied. Judgment was entered and this appeal is from that judgment and the order denying a new trial.
By his assignments of error defendant claims that the trial court erred to his prejudice in the following particulars: (1) Allowing the name of a witness to be endorsed on the information; (2) Instructing the jury that having in his vehicle intoxicating liquor is prima facie evidence of a violation of the law prohibiting driving while intoxicated; (3) Admitting in evidence a bottle of whiskey found in defendant's car at the time of his arrest. The latter two were also the basis of his motion for a new trial. Other matters urged and argued are omitted as being without merit.
The evidence for the state showed that about 2:00 or 2:30 A.M. on the day in question, which was a Sunday, the sheriff of Minnehaha county accompanied by a state motor patrolman was driving into Sioux Falls from the west on Highway 16. Three-quarters of a mile west of the city limits they came up behind a car going east at a speed of 35 to 40 miles per hour that was being driven in an erratic manner. One of the witnesses characterized it as being all over the road. In meeting a car coming from the city it would travel on the gravel on the extreme right of the highway. When there was no oncoming traffic it would go to its left over the center line of the highway. This occurred three or four times before it reached the city. After observing this the officers tried to stop it by blinking their red lights and shining their spotlight across its rear window. These went unheeded. Finally when they were able to get alongside of it they sounded their siren. The car then proceeded at least 100 feet before coming to a stop.
The defendant was the driver and sole occupant of the car. The sheriff ordered him out of the car, placed him under arrest and searched the car. Under the front seat he found a bottle of whiskey. While the record is not too clear, it indicates that the seal on the bottle had been broken and some of its original contents were missing. At the time of his arrest the defendant denied being intoxicated and asked the officers to take him home saying that he had not hit anyone. He indicated that he wanted a test made of his blood but on the way to the hospital changed his mind.
When arrested and later when being placed in jail the defendant was quite belligerent. The testimony of the officers described his speech as slurred, jumbled and choppy. When standing he was unsteady and when walking he staggered. His eyes were bloodshot and droopy. His breath had the odor of intoxicating liquor. One of the witnesses said it 'smelled like whiskey.' It was the opinion of each of the three witnesses for the state that he was drunk. Defendant admitted that earlier in the evening he had drunk one highball in a bar in the city. After that he attended a public dance until it closed at midnight. From that time until just shortly before his arrest he had been at Club 16, a nightclub on Highway 16, a short distance west of Sioux Falls. He denied having drunk anything more than the one highball referred to. The weaving of his car observed by the officers he attributed to defective brakes.
After the jury was selected but before it was sworn to try the case, the state requested and was granted leave to endorse the name of an additional witness on the information. This witness was a college student who was on duty as a part-time jailer when the defendant was jailed. The name of another jailer, not on duty that night, had mistakenly been endorsed as a witness when the information was filed. In support of his motion the state's attorney stated that the name of the jailer on duty that night had just then been made known to him. Defendant resisted the motion claiming that its allowance would deprive him of an opportunity to examine the jurors concerning their knowledge of and relationship with the witness.
While defendant stated in his objection that he was surprised by the endorsement he failed to move for a continuance or postponement of the trial on that ground in order to prepare to meet the testimony of such witness. In the absence of such motion no prejudice can be presumed from the endorsement. State v. Fulwider, 28 S.D. 622, 134 N.W. 807; State v. Forgraves, 32 S.D. 21, 141 N.W. 990. Whether the endorsement requested should have been allowed is a matter committed to the discretion of the trial court. State v. Jerke, 73 S.D. 64, 38 N.W.2d 874; State v. Johnson, S.D., 71 N.W.2d 733. In granting the motion the court permitted the defendant to examine all of the jurors concerning the additional witness. There is nothing in the record to indicate an abuse of discretion by the trial court in allowing the endorsement.
As one of its instructions the court told the jury
To the giving of such instruction defendant made this objection:
'The defendant objects and excepts to the giving of Court's Instruction No. 9 for the reason that there is no evidence in this case whatsoever to the effect or in substance that the defendant in any shape, manner or form touched this bottle or drank from it on the night of the alleged offense. * * *
'And to claim that this Exhibit may be used and considered as prima facie evidence that the law...
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