People v. Mullins

LANGDON, P. J.

This is an appeal by the defendant from a judgment entered upon a verdict of a jury finding him guilty of driving an automobile upon the public highway while under the influence of intoxicating liquor.

Appellant contends that the verdict is unsupported by the evidence. We have read the entire transcript of the evidence, and it contains ample testimony from which the jury was justified in finding the defendant guilty as charged. The fact that the defendant and his nephew testified that defendant was not intoxicated merely raised a conflict in the evidence, as did also the fact, urged by the appellant, that the symptoms shown by the defendant at the time of his arrest and narrated by the witnesses are compatible with the statement of defendant that he was merely tired and sleepy on the afternoon when he was arrested and was leaning out over the side of his automobile because it was his habit to do so when driving rather than to look through the windshield; that he was following this habit when he was arrested because the windshield was dirty, although it could be seen through. The justice of the peace before whom the defendant was brought immediately after

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Ms arrest, the constable and traffic officer who made the arrest, all testified that they had seen many intoxicated persons and recognized that condition when they saw it, and that the defendant was intoxicated at the time of his arrest, and they based their opinions upon the facts which they enumerated, i. e., that defendant was swerving in his automobile from one side of the road to the other, frequently going off the roadway into the dirt on his right-hand side and driving automobiles coming from the opposite direction off of the highway into the dirt on his left-hand side; that he was hanging out over the side of the automobile and that his entire appearance indicated intoxication and his breath was redolent of alcoholic liquor when he was arrested. Defendant admitted drinking some wine on the day of his arrest. There is no merit, therefore, in the contention that the evidence does not warrant the verdict.

Appellant objects to the action of the trial court in overruling his objection to the testimony of the arresting officers and of the justice of the peace relative to the condition of defendant at the time of his arrest. This objection was made upon the ground that these witnesses were not qualified to give opinions on the subject- Each of these witnesses stated the symptoms upon which he based his opinion, and we think the objections were properly overruled. “Whether a person was intoxicated is one of the most familiar subjects of nonexpert opinion evidence.” (11 R. C. L. 608, sec. 31.)