State v. Rand

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 398 Dewey Rand was convicted of driving an automobile while under the influence of intoxicating liquor, and he appeals.

AFFIRMED. REHEARING DENIED. The defendant, Dewey Rand, has appealed from a judgment sentencing him to serve thirty days in jail and pay a fine of $100, entered on the verdict of the jury finding him guilty of driving an automobile while under the influence of intoxicating liquor.

The crime with which he was charged was committed April 13, 1940. About eight-fifteen o'clock in *Page 399 the evening, on that date, the defendant was driving in a northeasterly direction on Sandy boulevard cut-off. This boulevard forms an intersection with Northeast Eighth avenue and Northeast Stark street, and all motor vehicles before entering the intersection from any of the three streets are required to come to a stop. The defendant, however, failed to make the stop and continued along Sandy boulevard through the intersection. A short distance beyond the intersection, where the boulevard is one hundred feet wide, his car swerved to the left and ran head-on into the automobile of LeRoy G. Gaither, who had previously thereto been proceeding in a southwesterly direction on Sandy boulevard and on observing the approach of the defendant's car had driven his own car as near to the curb as possible and come to a stop.

The state's testimony showed that when the defendant got out of his car after the collision he was unable to stand without support; that he was unable to find his driver's license, which was in his wallet; that his speech was not clear; that he had an odor of liquor on his breath; that he did not know that he was driving on the wrong side of the street; that in the opinion of several witnesses he was under the influence of intoxicating liquor; that he was not injured; and that upon arriving at the police station and being questioned he admitted that he had had three drinks of intoxicating liquor earlier in the evening. Police officers testified in regard to the physical observation test, as they termed it, which they had given the defendant at the police station. During a thirty-second standing test he was unable to stand straight, and swayed perceptibly. After walking a few steps and attempting to turn when requested he lurched and had to *Page 400 "catch himself against a wall" to avoid falling. In a finger-to-nose exercise, "twice he did it O.K. with his right hand, and next he missed, and with his left hand he hit once here and once here and once down on his chin or neck there [indicating]." He was able to pick up coins from the desk and put them in his pocket, but had to be told a number of times before he would return them.

The defendant's explanation of the collision is that he fell asleep at the wheel of his car; that by force of the impact his head struck the wheel, stunning him; and that his unsteadiness on his feet was due to the injury to his head.

Seventeen assignments of error are noted in the defendant's brief on appeal. The first of these assignments is that the complaint in which he is charged with the crime above stated is fatally defective, in that the "name of the person prosecuting this action is not endorced upon" it, as required by § 26-1217, O.C.L.A. Neither the original complaint nor a certified copy thereof is in the record before this court, and therefore the matter of the sufficiency of the complaint can not be here considered.

Shortly after the collision, according to Mr. Gaither, an automobile arrived bringing two county officers, and a little later city police arrived. Mr. Gaither was asked if he knew the names of the officers, and answered: "Well, I know one was Mr. Weckert. I don't know the other man, the one that really got the license. You see, I don't know the police officers at all, none of them." On cross-examination, counsel for the defendant called Mr. Gaither's attention to that part of his testimony about not knowing any police officers and asked him if he had any acquaintance with Lieutenant *Page 401 Schulpius, to which the witness responded that he had not. He was then asked if he was "related to him in any way, shape or form", and answered in the negative. After some discussion as to whether or not it was proper on cross-examination to inquire of Mr. Gaither his wife's maiden name, the defendant called Mr. Gaither as his witness and ascertained that the name of his wife prior to marriage was Vivian Durand and that she was not related to Lieutenant Schulpius. Following some colloquy, counsel for the defendant said: "And I am going to show that Mr. Durand married `Tip' Schulpius's daughter, and that this man [Mr. Gaither] married Durand's sister." All this was conceded by the state.

We fail to find in the record any ruling of the court adverse to the defendant in connection with testimony regarding Mr. Gaither's possible relationship to police officers. What the defendant attempted to prove was admitted by the district attorney. Lieutenant Schulpius was not on trial or a witness in the case and was not, so far as the record discloses, in any way concerned with the arrest or prosecution of the defendant.

Several witnesses testified as to the condition of the defendant immediately after the collision, describing how he acted, walked and talked. They were then questioned as to whether or not in their opinion the defendant was under the influence of intoxicating liquor. This was objected to on the ground that it called for opinion evidence on matters that should be left entirely to the jury. Whether or not any one is under the influence of intoxicating liquor may fairly be considered a matter of common knowledge and a question which a witness who is not an expert is competent to answer. His opinion is admissible, if he first shows that he *Page 402 "had opportunity to observe and did observe that person's condition": Guedon v. Rooney, 160 Or. 621, 638, 87 P.2d 209, 120 A.L.R. 1298; State v. Allen, 120 Or. 652, 253 P. 371.

The objection of the state to a hypothetical question asked by the defendant of one of the state's witnesses on cross-examination was sustained on the ground that the question was unintelligible. Any possible error committed by the court in sustaining the objection was cured when the question was reframed to contain all the essential elements of the original hypothesis and was answered by the witness.

The defendant predicates error on the ruling of the court refusing to admit in evidence copies of several different issues of a publication of which he was one of the editors, attacking the police force of the city of Portland in general and Lieutenant Schulpius in particular. It is the theory of the defendant that the attack upon the police force had so incensed the members thereof that "they were out to get" him. In his brief he argues that: "These editorials were admissible for the purpose of showing that no policeman would read them without getting sore at the author." There is no evidence in the record that any of the witnesses had ever read or heard of the articles, or that the editorials concerned any of the witnesses. Likewise, there is absolutely no evidence of animosity of any member of the police force toward the defendant; especially was none shown on the part of those connected with his arrest and trial. The articles contained in the publication were entirely irrelevant to the charge against the defendant.

Numerous other assignments of error are made, to which we have given careful attention, but they are so *Page 403 devoid of merit that to discuss them specifically would unnecessarily encumber and not enrich the reports. We can not see how any jury could have found any other verdict in this case than that rendered.

No error prejudicial to the defendant appears in the record, and the judgment is accordingly affirmed.