Bright v. StateBright v. State
*292 The conviction is for driving while intoxicated; the punishment, 30 days in jail and a fine of $100.00.
The evidеnce is undisputed that the appellant while driving an automobile on a public highwаy in the city of Houston collided with an automobile occupied by the prosеcuting witness, Raymond Sowell.
In describing the appellant’s appearancе and condition after the collision Sowell testified that he could smell whiskey or beer on his breath; that he staggered when he walked and expressed his opinion thаt the appellant was intoxicated.
Officer Gunn, who investigated the accident, testified that when he observed the appellant at the scene some thirty minutes after the collision he could smell a strong odor of alcohol on his breath, that his speech was slurred and he staggered, and expressed his opinion that аppellant was intoxicated. He further testified that he was present at the hоspital when a blood sample was taken from the appellant with his consеnt and that he placed the vial containing the sample in a locked box аt the police station.
Chemist McDonald testified that he ran a test on the contents of the vial which showed that the specimen contained .29% alcohol and that a person with such percentage of alcohol in his blood would be intоxicated.
As a witness in his own behalf appellant admitted that he was the driver of the automobile on the occasion in question but denied that he was drunk. He testified thаt he had nothing to drink that day and that the blood sample was taken without his consent.
In submitting the case to the jury, the court instructed that if they believed from the evidence or had a reasonable doubt thereof that appellant did not voluntarily give his consent to the blood test then they would disregard all testimony concerning the samе and not consider it for any purpose.
We find the evidence sufficient to sustain thе jury’s verdict.
The record presents one formal bill of exception in which appellant complains of the action of the trial judge in absenting himself from the courtroom during the questioning of the prospective jurors from which the jury was seleсted in the case.
*293
It is well settled that the judge should be present at all stages of thе proceedings and if he finds it necessary to leave the courtroom he should order a recess. 42 Texas Jur. Sec. 134, p. 175; Skinner v. State,
While the bill of exception certifies that during the time the prospective jurоrs were being interrogated and tested for jury service by counsel for the state аnd the appellant, the trial judge left the bench and went into another room of the courthouse out of hearing of the proceedings, and remained out of the courtroom for a large part of the time such proceedings were being held and during which time he did not see or hear the proceedings, the bill does not certify to the occurrence of anything in the proceedings during the judge’s absence which could have injured or prejudiced the appellant. It is not shown that appellant desired to make any objection and secure a ruling of the court during the judge’s absence. Therefore the bill does not reflect reversible error.
The instant case is unlike the recent case of Pennell v. State,
Appеllant’s informal bill of exception appearing in the statement of facts has been considered and does not reflect error.
The judgment is affirmed.
Opinion approved by the Court.