State v. Willard

84 S.E.2d 899 (1954)

241 N.C. 259

STATE v. Ernest C. WILLARD.

No. 654.

Supreme Court of North Carolina.

December 15, 1954.

*901 Harry McMullan, Atty. Gen., T. W. Bruton and Ralph Moody, Asst. Attys. Gen., for the State.

George A. Younce, E. L. Alston, Jr., Greensboro, for defendant appellant.

WINBORNE, Justice.

The record on this appeal contains several pages of unnumbered assignments of error based upon numerous exceptions taken by defendant upon, and in the course of the trial in Superior Court, relating in the main to testimony of the witness Davis, an expert chemist and hematologist, as to the alcoholic content in specimen of defendant's blood, and as to the effect of alcohol upon the human being when taken into the system. Yet no one of the exceptions is brought forward, or mentioned, in defendant's brief, and no reason or argument has been stated or authority cited therein in support of any particular exception. In such case, under Rule 28 of the Rules of Practice in the Supreme Court, 221 N.C. 544, at pages 562-563, all of the exceptions will be taken as abandoned by appellant.

Here appellant contents himself by stating in his brief, as questions involved, these two:

"1. Is expert testimony as to the results of a blood test taken after a defendant's arrest on a charge of driving under the influence of an intoxicating beverage admissible in the courts of this State?

"2. Did the Solicitor for the State argue improperly to the jury, under the facts of the record in this case, by saying: `Don't kill my child'?"

This is not sufficient to bring up for consideration the matters to which exceptions shown in the record relate. But if it were, consideration of the factual situation in the case in respect to the subject matter thereof, in the light of applicable principles of law, the first question merits an affirmative answer, and the second a negative one.

It seems clear that the first question is restricted to the question of the competency of testimony of an expert, who is qualified to make a test for alcoholic content in human blood, as to results obtained upon such a test of the blood of defendant. The matter of the competency of testimony as to the effect any given quantity of alcohol found in the blood stream would have upon a human being, the defendant, is not included in the phraseology of the question. Nor does it bring into question the matter of compulsory self-incrimination. N.C. Const. Art. I, Sec. 11.

In such light it is appropriate to see what the annotators of decided cases have to say on the subject of "Admissibility and weight of evidence based on scientific test for intoxication or presence of alcohol in the system": In Annotation 159 A.L.R. 209, supplementing annotation on same subject in 127 A.L.R. 1513, it is said: "From the cases generally, it is apparent that, subject to compliance with conditions as to relevancy in point of time, tracing and identification of the specimen, accuracy of the analysis, and qualification of the witness as an expert in the field, there is rather *902 general agreement that where the prosecution in a criminal case seeks to establish the intoxication of the accused, evidence as to the obtaining of a specimen of his body fluid at or near the time in question, evidence as to the alcoholic content of such specimen, as determined by scientific analysis, and expert opinion testimony as to what the presence of the ascertained amount of alcohol in the blood, urine, or other body fluid of an individual indicates with respect to the matter of such individual's intoxication or sobriety, is ordinarily admissible as relevant and competent evidence upon the issue of intoxication, at least where the accused furnished the specimen for the test, or submitted without objection to its taking."

Indeed, in our own reports we have State v. Cash, 219 N.C. 818, 15 S.E.2d 277, 278, a case in which numerous exceptions were taken to the admission and exclusion of evidence and in which defendant complained in this respect that while he was in jail, specimens of his blood and urine were taken for chemical analysis to determine the presence or absence of alcohol and morphine in his system, and contended that in this way he was compelled to give evidence against himself in violation of the constitutional inhibition against compulsory self-incrimination. N. C.Const. Art. I, Sec. 11. In connection therewith, this Court, in opinion by Stacy, C. J., wrote as follows: "The record fails to disclose any compulsion on the part of the officers in obtaining specimens of the defendant's blood and urine. The exceptions are therefore feckless. State v. Eccles, 205 N.C. 825, 172 S.E. 415. They are not sustained. It is the rule in this jurisdiction that physical facts discovered by witnesses on information furnished by the defendant may be given in evidence, even where knowledge of such facts is obtained in a privileged manner, State v. Garrett, 71 N.C. 85 (examination by physician), by force, State v. Graham, 74 N.C. 646 (compelling accused to put his shoe in track), by intimidation, duress, etc. Factual information thus brought to light is competent evidence, though the declarations of the accused made at the time, if obtained by improper influence, are to be excluded. State v. Gatton, 60 Ohio App. 192, 20 N.E.2d 265."

To like effect in principle are State v. Rogers, 233 N.C. 390, 64 S.E.2d 572, 28 A.L.R.2d 1104, opinion by Ervin, J., and State v. Grayson, 239 N.C. 453, 80 S.E.2d 387, opinion by Parker, J.

Therefore, the expert testimony as to the results of test of defendant's blood was admissible on the trial of this case on a charge of driving a motor vehicle upon the public highways within the State while under the influence of intoxicating beverages. G.S. § 20-138.

Moreover, it is not amiss to note that in this State a lay witness is competent to testify whether or not in his opinion a person was under the influence of an intoxicant on a given occasion on which he observed him. See State v. Leak, 156 N.C. 643, 72 S.E. 567; State v. Jessup, 183 N.C. 771, 111 S.E. 523; State v. Holland, 193 N.C. 713, 138 S.E. 8; State v. Dills, 204 N.C. 33, 167 S.E. 459; State v. Harris, 209 N.C. 579, 183 S.E. 740; State v. Dawson, 228 N.C. 85, 44 S.E.2d 527; State v. Warren, 236 N.C. 358, 72 S.E.2d 763.

And as to when a person is under the influence of an intoxicant, see definition in State v. Carroll, 226 N.C. 237, 37 S.E.2d 688.

In the light of these cases, there is in the present case abundant evidence, without any of testimony as to results of the blood test, to support the verdict and judgment pursuant thereto.

Now as to the second question: Defendant contends that the remark of the Solicitor is improper and prejudicial under the principles applied in State v. Little, 228 N.C. 417, 45 S.E.2d 542; Cuthrell v. Greene, 229 N.C. 475, 50 S.E.2d 525, and State v. Smith, 240 N.C. 631, 83 S.E.2d 656. In the absence of the factual setting of the remark, it is not made to appear that it was an abuse of fair debate and prejudicial. *903 Nor does the fact that the trial judge failed to instruct the jury in respect to it throw light upon the situation.

For reasons stated, there is in the judgment from which appeal is taken

No error.