194 N.E.2d 901 | Ohio Ct. App. | 1963
The defendant, appellant herein, was found guilty by a jury of operating a motor vehicle while under the influence of alcohol. From a judgment entered on the verdict, she has appealed her conviction and sentence.
The defendant has made four assignments of error. The first assignment concerns the overruling of her motion to require the prosecution to furnish evidence of body fluids for examination by her expert witnesses. There is no evidence in the file indicating that the evidence was in the hands of the prosecution at the time the motion was made to require the production of the evidence, and the first assignment of error will be overruled.
The second assignment of error will also be overruled as it concerns the motion to suppress the evidence of the expert based on his examination of the body fluids taken from the defendant, *395 and which she sought the production of through the motion mentioned in the first assignment of error.
The third and fourth assignments of error concern the overruling of objections to questions propounded by the prosecution in regard to whether the defendant had been convicted of drunkenness on four previous occasions. The record does indicate that the prosecution asked the defendant whether she had pleaded guilty to a charge of operating a motor vehicle while under the influence of alcohol on May 20, 1961, and she replied in the affirmative. The prosecution then asked whether she drank very often, and she replied "no." The prosecution then asked, "Isn't it a fact that you have been convicted four times for being intoxicated?" Over objection and after the jury was instructed that the answer as to previous convictions for intoxication could be considered only for the purpose of testing the credibility of the witness and for no other purpose, she was allowed to answer. Her answer was "no." Then the attorney for the defendant, in addition to making the objection, asked the trial court to declare a mistrial for the reason that the question was highly prejudicial and improper under the circumstances in the case. When the prosecution failed to prove that the defendant had been convicted of intoxication on four previous occasions and failed to offer any other evidence bearing on her alleged convictions, the motion for a mistrial was renewed and was overruled by the court.
The defendant refers the court to the case of Wagner v.State,
The Supreme Court of Ohio in the case of State v. Witsel,
The question was initially proper under the case of State v.Murdock,
The fifth assignment of error has to do with the manifest weight of the evidence, and it will be overruled.
Judgment of the trial court will be, and hereby is, reversed and the cause remanded for a new trial.
Judgment reversed.
BRYANT and DUFFEY, JJ., concur. *397