The defendant was found guilty by a jury of operating a motor vehicle on Broadway, a public highway in the town of East Providence, on March 20, 1941, while under the influence of intoxicating liquor, he having been previously convicted of a similar offense on April 16, 1934. His motion for a new trial was heard and denied by the trial justice. The case is before us on defendant's exception to the denial of that motion and on certain other exceptions taken by him during the trial.
Defendant's automobile had collided with a parked car, belonging to William C. Viall, in front of the latter's place of business. The defendant was arrested while standing in the highway close to and to the right of the right front door of the automobile. At the time of the arrest, defendant's mother, an aged woman, and a brother, Elmer, who had been ill and was then wearing an arm brace, were in the rear seat. Another brother, George, was on the right of the front seat. The driver's seat was vacant. George was arrested a few minutes after defendant's arrest and was later fined for drunkenness on that occasion. Defendant's mother and his brother Elmer were sent home in a taxicab.
We will first consider defendant's exception to the denial of his motion for a new trial. The guilt of the defendant depends upon the determination of two questions of fact. First, was the defendant under the influence of intoxicating liquor; and second, was he the driver of the automobile? As to the first of these questions, there was testimony of defendant's condition from the arresting officer, Raymond A. Quinley, and from Sergeant Arthur G. Rich, who arrived at the scene about the same time as Quinley. They testified *Page 121 that the defendant admitted having taken "some wine" before leaving his home and that his breath, speech and gait, indicated use of intoxicating liquor. Dr. Ernest A. Burrows, who examined defendant on behalf of the police shortly after his arrest, testified that he was under the influence of intoxicating liquor.
It appears in evidence that, as required by general laws 1938, chapter 104, § 1, clause 1, the defendant was informed soon after his arrest that he had the right to be examined at his own expense by a physician selected by him, but that he did not avail himself of this opportunity. He did testify that he was not under the influence of intoxicating liquor, and that any impairment of speech or motion, which he may have shown when examined by Dr. Burrows, was due to a physical ailment of long duration which manifested itself in such manner when he was nervous or excited. He admitted that he had never consulted a doctor for such ailment. The jury, as shown by its general verdict, believed the testimony for the state on this point. We find no reason to disagree with the jury.
As to whether the defendant was the driver of the automobile, it appears in evidence that when Viall came out of his place of business, very shortly after his automobile had been struck, he found the defendant in the highway and "asked him several times who was driving the car. He wouldn't tell. The last time he told me it was none of my business." Viall then had his office notify the police, and when Officer Quinley arrived on the scene Viall paid no further attention to what went on.
In cross-examination on this point, the defendant testified that he did not know who Viall was; that Viall could see for himself who was the driver of the automobile, as the collision happened right in front of his place; that he "didn't want to tell him"; and that he told him "`The hakes with you', or something like that." Sergeant Rich and officer Quinley both testified that the defendant admitted to them *Page 122 that he was the driver of the automobile. There is no direct denial of this testimony by the defendant.
Defendant's mother and his brother Elmer testified that George and not the defendant was the driver of the automobile, Elmer saying, that when the defendant got out of the automobile, immediately after the accident, "George moved over from the driver's seat over to the right." There is no testimony from either of these witnesses that they made any such claim when officer Quinley discussed with them about their going home in a taxicab, which talk occurred soon after that officer had arrested first the defendant and then George. Neither did George make such a claim at the scene of the occurrence, or at any other time to our knowledge, as George did not testify and no reason was given for his absence as a witness.
The defendant strongly argues that the positive testimony of defendant's mother and brother, not being contradicted by an eyewitness, entitled him to a verdict of acquittal by the jury, or at least to the setting aside of their verdict of guilty by the trial justice. We cannot agree with such contentions in the circumstances of this case. The conduct of the parties at the scene of the accident, the admission of the defendant that he was the driver of the automobile, and the unexplained absence of George as a witness, are some of the circumstances that the jury and the trial justice were entitled to consider in determining whether the defendant was the driver of the automobile.
A voluntary statement or declaration by an accused, although not amounting to a confession, but from which in connection with other evidence and the surrounding circumstances an inference of guilt may be drawn, is competent evidence. State v. Mariano,37 R.I. 168, 183; State v. Nagle, 25 R.I. 105; State v.Mowry, 21 R.I. 379. If such statement or declaration is believed by the jury, then the fact of the testimony of certain witnesses to the contrary is seriously affected. *Page 123
The controlling factor on the point now under consideration is one of credibility. If, upon a fair consideration of all the evidence, the jury believed the testimony for the state and rejected that for the defendant, then the defendant was properly convicted. By their verdict of guilty, the jury showed that they did not believe the testimony for the defendant, and this verdict has been approved by the trial justice.
While it is true, as the defendant points out, that the trial justice approved the verdict without comment, we cannot agree with defendant's contention that we should regard such approval as a perfunctory ruling by the trial justice upon the credibility of the witnesses or the weight of the evidence. The defendant does not claim that the trial justice misconceived or overlooked any material evidence in the case, and there is nothing in the record to show that the latter did not perform the duty imposed upon him by law in rendering his decision.
However, we have carefully examined the evidence for ourselves, keeping in mind that both the jury and the trial justice had the advantage over us of observing the witnesses as they testified, which is of material assistance in determining the credibility of testimony. Upon such an examination, we find no cause to disagree with the verdict of the jury and its approval by the trial justice. The defendant's exception to the denial of his motion for a new trial is therefore overruled.
Defendant's sixth, seventh, eighth, and ninth exceptions relate to the exclusion of statements allegedly made by Camille C. Turcotte, another brother of the defendant, to Sergeant Rich at the police station that his brother George and not the defendant was the driver of the automobile. The accident which resulted in the defendant's arrest occurred about 3 o'clock in the afternoon of March 20, 1941. On that day Camille was working in Providence until 5 o'clock, p.m. He was admittedly not in the defendant's automobile nor *Page 124 at the scene of the occurrence. His testimony was properly excluded as hearsay. These exceptions are overruled.
All other exceptions have been considered and found to be without merit.
All of the defendant's exceptions are overruled, and the case is remitted to the superior court for further proceedings.