The offense is driving an automobile upon a public highway while under the influence of intoxicating liquor; the punishment, a fine of $100.00.
Bill of exceptions No. 1 complains because of the voluntary statement of the witness McKenzie, after he had testified that he saw an automobile being driven in an erratic manner that ran into some people on the street, at the time and place set *Page 560 forth in the information, and that when said automobile was stopped he saw appellant, who appeared to be dazed and slumped over the steering wheel; the man was definitely staggering when helped out of the car, and his breath smelled like whisky. The witness then volunteered the statement, so the bill shows: "All I know is I saw a drunk man that night." We think this statement evidently refers to the condition of appellant as he was taken from the automobile by the witness and officers, two of whom also testified as to the drunken condition of appellant. We see no error reflected therein.
An exception is taken to the fact that the jury first returned a verdict in which it was said that: "We, the jury, find the defendant guilty, and should be fined $100.00 and court costs," and to the court's directing them to change the verbiage thereof to mean what they intended to find, and they then merely amended their verdict to say: "We, the jury, find the defendant guilty and assess fine of $100.00 and court costs."
This last verdict was evidently what the jury meant by their first verdict, and the trial court was within its rights when he refused to receive the first verdict; and though we think the first verdict was sufficiently clear to show what was meant thereby, the court's action in having the same corrected was not erroneous. See Branch's P. C., p. 333, Sec. 651.
It was not necessary that the jury should have been told by the court to include in their verdict of guilt, if such be found, the item of costs, such always following a verdict of guilt; nevertheless such an instruction we do not think evidences any error.
We think that no error is presented by the record, and the judgment is affirmed.
ON MOTION FOR REHEARING.