State v. Spurlock, 46413
| Decision Date | 12 May 1958 |
| Docket Number | No. 1,No. 46413,46413,1 |
| Citation | 312 S.W.2d 843 |
| Parties | STATE of Missouri, Respondent, v. M. O. SPURLOCK, Appellant |
| Court | Missouri Supreme Court |
No brief filed for appellant.
John M. Dalton, Atty. Gen., Hugh P. Williamson, Asst. Atty. Gen., for respondent.
HOLMAN, Commissioner.
Defendant, M. O. Spurlock, was charged with and convicted of the felony of driving a motor vehicle while in an intoxicated condition, and his punishment was fixed by the jury at imprisonment in the penitentiary for a term of two years. Section 564.440 and Section 564.460 RSMo 1949, V.A.M.S. (as amended, Laws 1953 p. 416). He has appealed from the ensuing judgment.
A brief statement of the facts will suffice. Two police officers of the City of Springfield testified for the State. It appears from the testimony of Officer Craig that he arrested the defendant on February 23, 1957, at about 2:45 p. m., after he had observed defendant driving an automobile down Monroe Street in Springfield with the car weaving back and forth across the street from one curb to the other. This witness stated further that when the defendant got out of the car he was drunk; that he could not walk without assistance; that his tongue was thick and he could not speak plainly; that his breath smelled strongly of alcohol; that defendant admitted he had been drinking and a bottle of whiskey about one-third full was found in the front seat of the car. Two other men were in the car with defendant and they were also drunk. Officer Durant testified that defendant was 'awfully' drunk; that he staggered when he attempted to walk, could not speak distinctly, and had a strong odor of beverage alcohol on his breath.
Defendant testified that he had been sick in bed for nine days before the day of his arrest; that he had not had a drink on the day in question and 'hadn't taken a drink of nothing for over ten days'; he admitted driving the car on the instant occasion and stated that he was weaving the car back and forth across the street in an attempt to miss 'chuck-holes' in the street. He further stated that he was afflicted with epilepsy which sometimes made him appear to be drunk when he was not. For the purpose of impeaching the testimony of the defendant the State obtained admissions upon his cross-examination that defendant, on one previous occasion, had been convicted of driving while intoxicated and had been convicted of careless and reckless driving on three prior occasions.
The defendant has not filed a brief and therefore it becomes our duty to examine the assignments in his motion for new trial. The first assignment is that the verdict is unsupported by any evidence of felonious intent on the part of the defendant. That contention is without merit. There was ample evidence that defendant was driving the automobile and that he was, at the time, intoxicated. Under the provisions of Section 564.440, supra, proof of those two elements is sufficient to sustain a conviction. State v. Campbell, Mo.Sup., 292 S.W.2d 297. Proof that the defendant was driving the motor vehicle and that he was in an intoxicated condition while so doing is sufficient evidence to authorize a finding by the jury that the defendant, in so driving the said vehicle, was acting feloniously.
The next assignment is that the verdict 'is an illegible scrawl and does not define any punishment or penalty provided by law.' The verdict as shown by the transcript reads as follows: 'We, the jury, find the defendant, M. O. Spurlock, guilty as charged in the information nad we assess his punishment at two years in penitentiary.' The information properly charged the offense of operating a motor vehicle while in an intoxicated condition. The verdict finding the defendant guilty 'as charged in the information' was in proper form. State v. Staab, Mo.Sup., 223 S.W.2d 496. The punishment fixed was within the limits prescribed by Section 564.460, supra. The original verdict is not in the transcript and there is no proof that it was illegible. It is obvious that the trial court could read the instrument as it accepted the verdict and pronounced judgment thereon. It is evident that the court reporter was able to read the verdict as it was copied into the transcript without any notation concerning its possible illegibility. Moreover, the attorney for the defendant approved the transcript which contained a copy of the verdict in the foregoing form. We rule this assignment against the defendant.
Defendant next asserts that he 'was not accorded a preliminary hearing before a qualified magistrate of Greene County.' That question was raised for the first time in the unverified motion for new trial and no proof was offered to support the assignment. Moreover, in State v....
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State v. Chester
...intoxication may be shown by evidence of his conduct and behavior (State v. Griffin, 320 Mo. 288, 294, 6 S.W.2d 866, 868(2); State v. Spurlock, Mo., 312 S.W.2d 843; State v. Campbell, supra, 292 S.W.2d at 298--299; State v. Johnson, Mo., 55 S.W.2d 967; State v. Reifsteck, 317 Mo. 268, 295 S......
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State v. McIntosh
...of evidence to support the allegations of the motion, the court did not err in overruling the motion to quash [See State v. Spurlock, Mo.Sup., 312 S.W.2d 843, 845(3)], nevertheless it is our duty on this appeal to determine the sufficiency of the amended information. Supreme Court Rule 28.0......
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State v. Spikes, 49584
...of Cole and variance with previous testimony and statements, all of which was for the jury to determine. As we said in State v. Spurlock, Mo.Sup., 312 S.W.2d 843, 845: 'That contention is without merit. No evidence was offered by defendant upon the hearing of the motion for new trial to pro......