Conviction for driving automobile while intoxicated; punishment, sixty days in the county jail.
The facts in the case are very short. Witness Hunnicutt testified that the car in which he was driving was struck by one occupied by appellant. He said he could smell liquor on appellant's breath, and that when he got out of the car appellant did not appear to be able to walk straight. Witness said he believed appellant had been drinking something of an intoxicating nature. Officer Jones testified that he saw appellant at police headquarters, took charge of him and locked him up. Said he could smell liquor on his breath, and from all appearances appellant had been drinking; in the opinion of witness he was drunk. Appellant introduced several character witnesses; also his nephew, who was with him at the time of the automobile accident, and testified that appellant was not under the influence of liquor at all. Appellant took the stand himself and said that he had been out on a paper route that morning and had met a friend who suggested that they take a drink. Appellant said he took one drink of whisky and was then in the car with his *Page 599 nephew, driving down the street when the automobile collision occurred.
There are four bills of exception in the record. The first complains of a paragraph of the court's charge wherein he told the jury that if they believed beyond a reasonable doubt that on the date mentioned appellant was intoxicated, or under the influence of intoxicating liquor to any degree, and that he did drive a motor vehicle on Elm street, they should convict, the objection to the charge being that thereunder the jury had to convict appellant regardless of the degree of his intoxication. We have to look to the entire charge in determining the sufficiency of any particular paragraph thereof. We find in one of the paragraphs of the charge that the court told the jury that by the term "intoxicated or under the influence of intoxicating liquor to any degree" is meant that a person has taken into his stomach a sufficient quantity of intoxicating liquor so as to deprive him of the normal control of his bodily or mental faculties. In our opinion it is not necessary to give any definition of the terms used in the statute, but one having been attempted, we think it not erroneous. We think the charge not open to the objection contained in said exception.
The second exception was reserved to the refusal of the court to give to the jury a peremptory instruction to return a verdict of not guilty. We think the exception is not well taken. The third exception is to the refusal of the court to give a special charge wherein appellant sought to have the jury told that by the terms "drunk" or "intoxicated" is meant the excessive drinking of liquor to such an extent as to deprive one of normal control of bodily and mental faculties. We think it not necessary to require the jury to believe there must be excessive drinking in order to make one so under the influence of intoxicating liquor as to interfere with the normal control of his bodily or mental faculties.
The fourth bill of exceptions complains of the refusal of a special charge which is in terms almost exactly the same as the quoted part of the court's main charge. It is not necessary to give special charges which are but repetitions of instructions already given.
Believing the evidence sufficient, and that no error appears in matters of procedure, it follows that we are of opinion that the judgment must be affirmed, and it is so ordered.
Affirmed. *Page 600
ON MOTION FOR REHEARING.