*1 Harry Pollard, Austin, appellant. S. McKAY v. STATE. Austin, Perry Attorney, Jones, County L. No. 24807. George Atty., of Blackburn, P. State’s Court of Criminal of Texas. Austin, for State. 25, Oct. 1950. .Rehearing 10, Denied Jan. 1951. BEAUCHAMP, Judge. Application As Modified Denial of Appellant penalty of was assessed Leave to File Second Motion for driving a jury charge $50.00 Rehearing Jan. City of motor vehicle on the streets
Austin while intoxicated. on the streets the vehicle That he drove Appellant alleged is admitted. at the time intoxication, ad- stoutly but did denied in the of beer drinking four bottles mit his ar- evening before late afternoon City Hall rest. When taken permission for signed a written he police breath for to test his the officers as the known instrument Drunkometer.
The officers who arrested him and ob- ample served him after gave his arrest jury’s evidence to sustain the in- verdict dependent complained of evidence speculate, this case. We how- ever, they in- done so dependent of the breath test—which controversy 'appeal real in the case It, therefore, before this Court. becomes important which, to discuss this issue our view of the entire is the question requiring consideration in this opinion.
Appellant’s Exception Bill of No. 4 com- plains of the evidence of Beer- E. Dr. stechcr, a research biochemist at the Uni- versity of This Texas. evidence is stated bill, part in the of which fol- reads as “ lows : am familiar with T the instrument test; Plarger known as the breath I studying been that between ten and eleven months. feel that the machine I is ex- tremely reliable. It shows how much al- person’s in a cohol is blood at time the my experience Based on test was taken. and the tests run the MiedicalAssocia- tion, if a man has .270 of alcohol in his body by weight, would I was intox- ’ * ** icated. On cross-examination witness further ‘There testified: among scientists disagreement as to the accuracy (Harger) A test. analysis of the blood itself shows *2 17é is the established proportion degree of alcohol to which the fact is per cent or
what research., may by Theory the sample. The of scientific This Court in blood recognize accepted scientific con- is that the breath (Harger) generally test clusions, the per though in should be some a cent saturation even there indicates blood; probability This proportion. disagree In all a calculated with them. it is may disagree a in a number states. who will is scientist breath test used every accepted practically for some with generally work with this machine From months, theory. judicial observing officers take the scientific We will ten to eleven my knowledge tests, knowledge from fact making the -and the scientific time, my opinion is that expert alcohol, round. At the know as an on earth is same very claim be (Harger) machine is reliable. there are still individuals who theories, many states. even to not in other scientists who other This test is holding be- There, opinion instead liv- again, a difference extent of is dispute states, ing globe a we live just as there is a on the outer tween the surface ” accuracy.’ its and it among globe, about within a that there within scientists sun, heavenly moon, bodies stars and all the by appellant, made The chief contention which we observe. would no We bill, is found in the foregoing based on theory, disagreeing with such trouble page his proposition his first two destroy not fact that there it does (cid:127)brief, prejudicial error “It was as follows: a are others who have different view. The court, timely appellant for over by no bars of such others means appellant, permit the State objections of of a scientific truth before evidence Harger Drunlc- to introduce evidence preclude jury, courts from nor would it alcohol breath- or alcohometer or ometer judicial taking knowledge of the truth of purported- the results appellant and it. ly thereby, because State did shown result is prove that such breath-test its and University, Evanston, Northwestern accepted by accu- scientists generally Illinois, within present year, has rately alcoholic content of establishing the published a work quote: from which we show he was subject’s blood to whether prosecution “The rely need longer no sole- * * * of intoxicating the influence ly upon objective symptoms. intoxication.” extent of his and the developed Scientific methods have been interpret is determining contention there As we alcoholic concentration by manner analysis body in which the attack made on blood substances, blood, e., urine, breath, saliva, i. operated making machine in officers spinal analyses or fluid. is conclusion Such will deter- test. exactly Beerstecher, mine Dr. after suspect because extent to which a reached witness, expert qualifying liq- stated that ‘under influence of opinion among a difference of uor.’ The evidence there was of such accuracy. analyses may do chemical supple- as to its Neither be used scientists controversy any raised the bill ment the evidence we find from obtained observa- that, if the science, contends machine tion of the accused. which Medical actually years experimen- if through and the blood content curate research and per weight, tation, .270 cent contained has is not established stated Dr. Beer- conclusion person scientific amount by a consumed to the intoxicated condition of stecher driving his ability but affects supported other is not scientists. accused blood, amoimt his absorbed into probably ground be no brain, There circulated to the and thus and, contention. correspondingly, nerves fects his physical mental faculties.” position that it is incumbent remark, may parenthetically in the trial the case to We the State upon explains scientifically why accepted fact the reason the test is this scientific prove that correct, people become depending intoxicated may or not be less time, powers. absorbs lative duties or At the same system Their drink than others. proposal by per- in- such authorities given quantity from more alcohol supporting Dr. which suasive liquor. It is amount toxicating *3 Beerstecher, to be amount if that needs evidence and not the blood goes into the supported, pro- in the as to the effect alcohol drinks which individual which the blood, accuracy the but has no bearing condition. intoxicated duces the ar- of the instrument The brief used. and further: quote same work we From gument evidence, it is attack the but entire de- commonly methods “The most only goes our view that the bill as taken con- alcohol blood person’s termining accuracy to of the the instrument. analyze the chemically is to centration urine, amount blood, The or breath. return, then, We from a discus direct- two substances in the latter alcohol appel question presented by sion of the in the alcohol ly parallels the amount of lant in his brief to that believe which we therefore, from amount and, the blood to deciding question be a view here kidneys or through the excreated alcohol presented. Dr. that Beerstecher testified in the lungs, concentration the question instrument and the is accurate blood can 'be determined circulating gave his reasons admitted for it. He scientifically.” curately and disagree that there are others witf accuracy. Presi- objection the The his testi its to further observed. is Conference, therefore, Safety mony, goes anc weight to its Highway dent’s admissibility. Committee not to its Association’s If it were American Medical only1^ Accidents, Na- Highway may evidence in the case it and be doubtful on Street for have Safety jury appellant guil Council’s Committee tional Intoxication, ty. national other not and We are to what for called Tests pas- they have recommended would be if organizations our view convicted had rec- alone, because, will the states which on this evidence sage laws as herein analyses of stated, amply above there is other ognize value evidence breath, bodily urine, jury’s other blood, supporting or conclu Our verdict. presump- substances, admissible, rise give and is that sion this evidence is to presented accused shows the if to us in what tion that by weight of worth, or cent less and per have ever it is not reversible .05 was influence appellant’s not is it. alcohol that he error to overrule if he has liquor; intoxicating only We discussed the overshadow- per .15 but less than amount of that excess case, question given in this ing but have way or cent, presumption rests one no nothing to all consideration others and find per .15 other; test shows where requiring reversal. by weight alcohol in his cent more or judgment of The the trial court is presumed that the defend- it shall blood firmed. influence of ant under the that such evidence shall not and HAWKINS, Judge Presiding (concur- limiting the introduction construed ring). competent upon the bearing other question pre- In question intoxication. by appellant’s exception bill is sented case, in the paragraph that discussed last holding, in the instant not We are by my Beauchamp, and Brother foregoing established as publication expressed conclusion am a wor- with therein I fact. scientific accord, enter authority be in and concurrence there- an which must thy from one may with, any opin- from and, probability, win abstain expressing in all respected general regarding from discussion of the courts of ion recognition such approval disapproval pass subject, or Legislature or of Texas states. pow- quotations in the law, its stated several if within constitutional conclusions such lcgis- no various sources. ers, courts of Texas from but the tests, thereof seem courts Rehearing and the tector” Motion On rec- are 'hold that reluctant GRAVES, Judge. .proven scientists as value ognized a motion Appellant argues and files guilt. At ascertaining an accused’s upon practically point, based one present time, we in accord with are are fact that scientists is because be shown holdings, and until such tests can reliability agreed as to the generally fairly guilt or innocence show Drunkometer, or breath accused, their intro- see reason for attempt the amount test, to ascertain in an said tests duction All of in evidence. breath; person’s in a universally recognized present time *4 upon part of such disagreement such experimental stage. as in but an preclude or intro- the use would scientists use It is shown of the states that some a of such breath the results of duction not; that test do this while others unanimity of think such lack test. We while recognition some scientists refuse its to weight given to might bear accept it reliable. It was others test, ap- same such but the results of cepted biologist as such the eminent might for what it pears be admissible to case, in it to be relia- used who deemed worth, light of especially in the been test ble and that such whose was appellant as signed statement correctly determined amount of objected to although appears in the in His found the breath. further trial, strenuously as follows: if so percentage certain 29, “Aug. in intoxi- the breath would indicate having McKay, after “I, (Johnnie) seriously challenged. T. G. cation seems to be White, duly W. warned William course, been finding Of this latter is the basis made, this statement is person objection, to whom appellant’s present and we think all, any test at not have to take jurisprudence that I do that the reluctance voluntarily request freely and accept do a con- states such to me, and given further test for alcohol be goes clusion to based on test may be the result weight state its admis- thereof rather than to against me on in sibility. which such alcohol concerning offense appears from this record that made. test is herein unanimity is a all among there the wit McKay.” “Johnnie nesses that the scent of through- to numerous cases cited areWe appellant’s on was 'breath. admitted He Union, some them other states out beer, drinking he had been con agreement upon a failure of an being based gayer felt little on tended reliability to the among scientists beer; account of the all other witnesses test, declining- and thus drunkometer testifying to scent intoxicant in evidence. accept same his breath. witness who testified to meter, State, expert was an results Guenther v. cited case In merely biology, testimony based his such a test Tex.Cr.App., S.W.2d appel effect of the amount presence an the found on admissible held meter, lant’s the use the accused to to the which submit agreement merely confirmed the pre- thereof statements of same, the results were to appellant’s ficers relative jury. opinion, In that how- condition at to the sented time what the arrest. One line of ever, refused further witnesses we proper objec- it, the breath and had a smells another have been measures result and both arrive at to the introduction of the made same conclusion. been tion test, Therefore, we pro which see no in such of such error ceedings. case. in this many cited cases in courts All matters appearing Wc are the record have given Texas relative de- “lie been careful consideration outside
X77 ingly in fur- ordered sentence shall be re- we see reason court and entire say that we think this formed so as to conform to the verdict of writing save ther disposed of. properly jury. has been cause rehearing reformed, judgment, will therefore The motion affirmed. overruled. Opinion approved by the Court. v. STATE. JACKSON BOLT v. STATE. No. 25067. No. 25087. Texas. Criminal Court of *5 Court of Criminal of Texas. 1951. Jan. 3. Jan. attorney appellant.
No appellant. appeal None Blackburn, George Atty., P. State’s Austin, for the State. Blackburn, Atty., State’s George P. Austin, State. for the GRAVES, Judge.
WOODLEY, Commissioner. unlawfully The conviction is for driving public a motor vehicle highway Appellant convicted 'for the offense while the influence of felony jury, their ver- theft and penalty liquor. The dict, punishment assessed a fine years two assessed $100. penitentiary. confinement exception The record is before us without
There no bills of state- facts exception. or bills facts. ment statement of All proceedings appear regular. erroneously states that the sentence peniten- confined in the shall be court is defendant years. tiary firmed. for a term of five accord-