This сase arose from a head on collision in which two people were killed. A jury convicted appellant on two counts of involuntary manslaughter, Ark. Stat. Ann. § 41-2209 (Repl. 1964), and assessed his punishment at twо years on each count in the State Department of Correction. Appellant first asserts for reversal of the judgment that the deputy clerk and the court improperly commented upon appellant’s right to remain silent. We must agree as to the comment by the court.
After the jurors were selected and sworn, the following discussion occurred:
THE COURT: All of the witnesses in this case, pleasе stand and be sworn. Defendant is now in jeopardy.
(A deputy clerk, Mrs. Shipman, asks that the defendant be sworn, along with witnesses in the case.)
MR. LINEBERGER: I think we have the right to have him sworn at a later time.
THE COURT: Sure. Sure. He doesn’t have to take the stand at all if he doesn’t want to.
Appellant objected and asked for a mistrial which was refused.
In Russell v. State,
If the accused is to have the unfettered right to testify or not to testify he should havе a correlative right to say whether or not his silence should be singled out for the jury’s attention.
In Mosby v. State,
Based upon the recоrd before us, we cannot say whether the remarks of the court upon voir dire were invited or not. So, in that state of the record, the fact that the trial court brought appellant’s silence оr non-silence as a witness to the jury’s attention during voir dire rather than during final instructions is of no consequence. The appellant’s ‘correlative right to say whether or not his silence should be singled out’ was infringed upon just the same. The prerogative of so alerting the jury was exclusively within the option of the appellant.
In the case at bar, the appellant’s right to testify or not to was brought to the jury’s attention by the court. That unfettered right belongs to appellant. The state argues that Russell and Mosby are inapplicable because the court’s remark was invited by appellant’s attоrney. We cannot agree. His attorney was merely stating correctly that the appellant had “the right” to be sworn later.
Appellant next asserts that the trial court erred in allowing an excusеd witness to be recalled to the stand. Pursuant to Ark. Stat. Ann. § 43-2021 (Repl. 1964), both parties invoked the “rule.” The court then excluded the witnesses from the courtroom. A policeman testified for the state. He was еxcused by the state “to return to his duties.” However, unknown to the parties, he remained in the courtroom and heard other testimony before his presence was observed. Over appellant’s оbjection, the officer was recalled by the state and gave additional testimony which rehabilitated his earlier testimony.
The appellant relies on our recent cases. Reynolds v. State,
Appellant next asserts that the court erred in permitting an investigating officer to give his opinion as to the direction the two vehicles werе traveling when they collided. There was no eyewitness to the accident. A state policeman, who investigated approximately five accidents a week for eleven years, obsеrved the skid marks and the resting places of the vehicles involved. When asked “[W]hat did you physically observe, officer,” he responded that appellant’s “vehicle was traveling toward Fayetteville.” In the circumstances, we cannot. agree that this experienced officer’s testimony, based upon his observation of the physical evidence at the scene, was speculаtive and invaded the province of the jury with respect to a factual issue.
Appellant next asserts that the trial court erred in allowing testimony about appellant’s blood analysis. Appellant’s contention is that a proper chain of custody was not proven. The blood sample was taken, sealed and labeled by a lab technician in the presence of a statе police officer. The sample remained in the officer’s custody until it was delivered to Lt. Karl Martens of the Springdale Police Department. Martens testified that he put the sample in the refrigerator and stayed in the room until he made the analysis. After completion of the analysis, the vial was placed in an unlocked storage cabinet. There is no evidence of any tamрering with the vial. Any access to it by others, in the circumstances, would bear only upon the credibility or weight of the evidence.
Appellant contends that the blood sample was drawn at a doсtor’s request and, therefore, the doctor-patient privilege prevails. Ark. Stat. Ann. § 28-607 (Supp. 1973); and Ragsdale v. State,
Appellant also asserts that the state failed to prove that the blood test was performed according to methоds approved by the Arkansas State Board of Health and Ark. Stat. Ann. § 75-1046 (b) and § 75-1031.1 (c) (Supp. 1973). There is evidence of substantial compliance with the Health Department rules and pertinent statutes. A qualified lab technician drew the sample. Pursuant to Arkansas State Department of Health rules (AP-210), he cleansed the skin with a nonalcoholic solution. The sample was placed into a containеr with an anticoagulent arid sealed pursuant to AP-213. The technician, who was familiar with these rules, labeled the vial as to the time it was drawn, the date and appellant’s name. AP-213. Pursuant to AP-215, the officеr, who requested the sample, observed the extraction in order to testify as to authenticity. Lt. Martens refrigerated the sample when he obtained possession. AP-214. He is a certified operаtor and used a certified gas chromatograph for the analysis, a method approved by AP-315.
AP-210 requires that the sample be collected within two hours of the alleged offense. In this case, the most accurate testimony as to the time of the accident was 9:30 p.m. However, the victims were not administered to in the emergency room of the hospital until 11:30 p.m. The blood sample was drаwn from appellant about 12:40 a.m. Lt. Martens testified on cross-examination that the longer one waits to run the blood alcohol test the percentage of alcohol decreasеs. Certainly, appellee has shown substantial com-plience and no prejudicial error is demonstrated.
Finally, appellant asserts that the trial court erred in overruling appellant’s mоtion for a directed verdict. In Burks v. State,
.... a directed verdict is proper only when no fact issue exists and on appeal we review the evidence in the light most favorable to the apрellee and affirm if there is any substantial evidence.
Shortly before the accident, a witness observed appellant at a liquor store. To him, appellant acted drunk. “I told the man that I didn’t think that hе was able to drive, and he told me to worry about my own business.” The liquor store is between the site of the accident and Prarie Grove. The state policeman observed the physical evidence, as previously indicated, and testified appellant was traveling toward Fayetteville. Another witness, on cross-examination, testified that appellant told him he was on his way to Springdale, which is in the Fayetteville direction. To travel toward Fayetteville, the proper lane of travel would be the right lane. The accident, a head on crash, occurred on the left side of thе highway near the shoulder. In the other car were two people, who lived at Prairie Grove, and were pronounced dead on arrival at the hospital. The weight of alcohol in aрpellant’s blood was 0.16 percent, which is above the level considered to be a presumption that a person is intoxicated. Ark. Stat. Ann. § 75-1031.1 (a) (3) (Supp. 1973). The appellant was found within a few minutes following the accident unconscious and alone in his car which was on fire. The impact was so terrific that it left broken glass, debris and oil where it occurred. It appears from the exhibits that both сars were completely demolished. One witness testified that it took him approximately five minutes to extricate the appellant from his car.
It must be said that a jury could infer that the appеllant was alone and driving toward Fayetteville. In Abbott v. State,
.... the question whether circumstantial evidence excludes every reasonable hypothesis other than an accused’s guilt is usually for the jury, аnd no greater degree of proof is required where the evidence is circumstantial. (Citing cases.) It is only when circumstantial evidence leaves the jury, in determining guilt, solely to speculation and in conjecture that we hold it insufficient as a matter of law. (Citing cases.) In testing its sufficiency, we must view it in the light most favorable to the state.
We are of the view the evidence is not insubstantial as a matter of law and that it constituted a factual issue for the jury’s determination.
Reversed and remanded for the error indicated.