Wells v. State

• Decision Date: 08 May 1959
• Docket Number: No. 29702,29702
• Citation: 158 N.E.2d 256,239 Ind. 415
• Parties: Doyle WELLS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 256

158 N.E.2d 256

239 Ind. 415

Doyle WELLS, Appellant, v. STATE of Indiana, Appellee.

No. 29702.

Supreme Court of Indiana.

May 8, 1959.

Mellen & Mellen, Bedford, for appellant.

Edwin K. Steers, Atty. Gen. of Indiana, Merl M. Wall, Asst. Atty. Gen., for appellee.

ACHOR, Judge.

Appellant was charged in two counts, one with involuntary manslaughter under § 10-3504, Burns' 1956 Repl. [Acts 1929, ch. 189, § 1, p. 616] and, two, with operating a motor vehicle while under the influence of intoxicating liquor under § 47-2001(b), Burns' 1952 Repl. [Acts 1939, ch. 48, § 52, p. 289.] He was tried by jury and found guilty on both counts.

The causes for appeal, which appellant has reserved and presented to this court, are as follows:

One: Refusal of the court to give appellant's tendered instruction numbered 1. This instruction was as follows:

'A person charged with the commission of a crime is not required to testify against himself.

'Before you can consider any evidence of a blood test in this cause you must first find that the defendant knowingly consented to the taking of a sample of his blood for a test of its alcoholic content, and if you do not so find then you should not consider such evidence of a blood test and the percentage result thereof as evidence against the defendant.'

Appellant contends that this was a proper instruction because of the fact that by the taking of the blood test and reporting the results thereof in court he was (in effect) required to testify against himself, in violation of his constitutional right, ¹ and that although he may have consented to such test while under the influence of intoxicating liquor, said consent did not constitute a waiver of his constitutional right, for the reason that it was not 'freely and knowingly' given. ² In support of his contention, appellant cites the case of McClanahan v. State, 1953, 232 Ind. 567, 571, 112 N.E.2d 575, 577. In that case the court held that the mental condition of an intoxicated person is often such that he could not 'freely and understandingly' enter a plea of guilty to a criminal charge and therefore the legislature could not, by statute, ³ '* * * require an accused who is in fact drunk or in an unlawful state of intoxication, * * * to be brought before a magistrate' for arraignment.

A plea of guilty to a crime involves many considerations of law and fact, a decision regarding which requires a high degree of mental capacity on the part of the accused. There is a marked difference between the mental state required to enter a plea of guilty, as contrasted with mere consent to submit to a test to determine one's physical condition. The law presumes (subject to proof to the contrary) that a consent to a physical examination or to make a confession is 'freely and knowingly' given even though the person giving such consent is intoxicated. ⁴ Here the presumption stands unrebutted. One who voluntarily submits to a drunkometer test could not thereafter assert that he was thereby required to testify against himself. Spitler v. State, 1943, 221 Ind. 107, 46 N.E.2d 591. The instruction was outside the evidence. Therefore the court properly refused to give the instruction.

Two: Appellant contends that the court erred in giving Instruction 11. This instruction reads as follows:

'I instruct you that under the law of this state if you are convinced, beyond a reasonable doubt, that at the time and place charged in the affidavit herein, the defendant operated a motor vehicle upon the public highway of this state, and that at the time of such operation there was 15/100ths per cent or more by weight of alcohol in his blood, the fact, if it be a fact, that there was 15/100ths per cent by weight of alcohol in his blood, may be considered by you as evidence that the defendant was under the influence of intoxicating liquor sufficient to lessen his driving ability within the meaning of a statutory definition of this offense.'

Appellant asserts in his objection that the instruction was erroneous for the following reasons: (1) That it was made applicable to both Counts 1 and 2 of the affidavits, whereas the issue of intoxication was not involved in Count 1 (but involuntary manslaughter only); (2) that neither the legislature nor the court had a right to indicate what percentage of alcoholic content in appellant's blood should be considered by the jury as making a prima facie case of driving while under the influence of intoxicating liquor, as charged in Count 2.

Contrary to appellant's first objection to Instruction 11, the state of appellant's condition while operating the automobile tended to show willful and wanton conduct and the doing of an unlawful act which resulted in the wrongful death, as charged in Count 1 of the affidavit. Therefore, the instruction was proper. Minardo v. State, 1932, 204 Ind. 422, 430, 183 N.E. 548.

The subject matter of Instruction 11, to which the second objection is addressed, is specifically authorized within the express provisions of § 47-2003(2), Burns' 1952 Repl. [Acts 1939, ch. 48, § 54, p. 289], as follows:

'* * * Evidence that there was, at the time, fifteen hundredths per cent [.15%], or more, by weight of alcohol in his blood, is prima facie evidence that the defendant was under the influence of intoxicating liquor sufficiently to lessen his driving ability within the meaning of the statutory definitions of the offenses.'

However, appellant cites Steinbarger v. State, 1948, 226 Ind. 598, 82 N.E.2d 519, as supporting his proposition. In that case the defendant was charged with the possession of burglary tools with intent to commit burglary. The statute [§ 10-703, Burns' 1956 Repl.] referred to makes possession of burglary tools by one previously convicted of a felony prima facie evidence of intent to commit burglary. However, the Steinbarger case and the case at bar are distinguishable. In the Steinbarger case the statute [§ 10-703] purported to provide that certain proven facts (mere possession of 'burglary tools') constituted prima facie evidence of another fact (intent to commit burglary). This, we said could not be. A man's state of mind cannot be scientifically determined. Neither can his intent to commit a burglary be presumed, as a matter of law, from the mere possession of tools, for which there are many other uses. By way of distinction, in the present case the instruction merely provided that .15 per cent of alcohol in the blood may be considered as evidence that appellant was under the influence of intoxicating liquor sufficient to lessen his driving ability. In other words, the instruction merely states that the jury may consider that, as a matter of scientifically established cause and effect, such proven amount of intoxication will ordinarily rpoduce a calculable physical effect upon the intoxicant. Because of this distinction, the Steinbarger case, supra, does not sustain appellant.

Furthermore, in support of his objections, appellant relies heavily upon earlier cases of this court which state that, (a) the jury is the judge of both the law and the facts, and, (b) the court may not, by instruction indicate the weight which shall be given to any evidence. ⁵ Appellant's contention regarding proposition (a) falls in the light of the recent case of Beavers v. State, 1957, 236 Ind. 549, 559, 562, 141 N.E.2d 118, 123. In that case this court held that, notwithstanding the constitutional provision, ⁶ herein relied upon by appellant, instructions to the jury regarding the law and the rules of evidence are both necessary and proper. In that case this court stated:

'A jury has no more right to ignore the law than it has to ignore the facts in a case. * * *

* * *

* * *

'* * * The right to determine the law, whether it be done by the court of jury, is not the right to make, repeal, disregard, or ignore the law in all its phases. Keiser v. State, 1882, 83 Ind. 234; 1 Ewbanks Indiana Criminal Law, Symmes Ed., § 416, p. 259.'

The same logic is controlling of the decision in this case. If the jury is required to accept the law as established, it may also be required to accept the fact that, given a proven circumstance, a scientifically established effect may be considered to result therefrom. ⁷ We therefore conclude that the giving of the instruction was proper.

Further, appellant contends that the court committed error based upon the following circumstances: After both the appellee and appellant had concluded their evidence and rested the case, the court permitted the state, over the objection of appellant, to recall appellant to the witness stand for further cross-examination. Appellant objected to the reopening of the case on the ground that appellee's request for reopening the case was for the purpose of further cross-examining a witness for the defendant (the opposition), and not 'to offer evidence upon their original case,' as authorized by statute. In support of his position appellant relies upon § 9-1805, Burns' 1956 Repl., which reads in part as follows:

'The jury being impaneled and sworn, the trial shall proceed in the following order:

'First. The prosecuting attorney must state the case of the prosecution and briefly state the evidence by which he expects to support it, and the defendant may then state his defense and briefly the evidence he expects to offer in support thereof.

'Second. The prosecuting attorney shall then offer the evidence in support of the prosecution and the defendant shall then offer the evidence in support of his defense.

'Third. The parties may then respectively offer rebutting evidence only, unless the court, for good reason, in furtherance of justice, permit them to offer evidence upon their original case.'

The law is well settled in this state that the court may, within its discretion, reopen a case for further evidence which would have been a proper part of the case in chief. ⁸ Hire v. State, 1896, 144 Ind. 359, 43 N.E. 312; Kahlenbeck v. State, 18...