The treatment of Bills of Exception Nos. 7 and 8 in the original opinion is criticised.
The officers who arrested the appellant testified that he observed a Ford coupe driven by the appellant in which there were two other men. The speed of the car was about 25 or 30 miles an hour. The officer testified: "That car was not driven straight. It bobbled right sharply in the road during the time I was pursuing the car. * * * That car was zigzagging and wobbling."
Ragsdale, who was in the car with the appellant, testified that the street was rough and "chug-holey"; that the speed of the car was about 20 miles an hour; that the appellant made no bobbles; that the car was an old second-hand Ford, which was three or four years old and which had seen better days.
The appellant testified as follows: "In going out there, I did not zigzag like an old-fashioned rail fence but drove down the street or road just like anybody else would. I stayed in the road. The wheels of that old Ford shimmied some but I stayed right in the road. They did not make me cross the road."
Several witnesses testified definitely that the appellant was drunk. He testified that he had drunk no intoxicants. One of the witnesses who was riding with him was definite upon the same subject. Another witness, who was with him, expressed himself as unwilling to say that the appellant was duly sober but would not say that he was drunk. The manner in which the car was traveling upon the street may have been one of the circumstances leading to the conclusion that the driver was intoxicated. However, as above stated, that he was intoxicated was vouched for by several witnesses who testified for the state.
It appears from the bills of exception mentioned that after the witnesses Couch and Ragsdale had testified that they were familiar with the *Page 108 automobile in which the appellant was riding at the time of his arrest, he offered to prove by each of said witnesses that a Ford automobile three or four years old, when driven on a rough road, the wheels of the car would shift a little. The rejection of this testimony is made the subject of complaint. Witnesses for both the state and the appellant gave testimony to the effect that the automobile would wobble and shimmy to some degree over rough ground; that such testimony came from the witnesses mentioned in the bills, as well as from others, as shown above. Under the circumstances, the rejection of opinion testimony as would establish the general effect of an automobile of that type is not regarded as harmful error, if, in fact, it was error at all, which is questionable.
The motion for rehearing is overruled.
Overruled.