The opinion of the court was delivered by
This was an action wherein the defendant was convicted of manslaughter in the fourth degree and as a persistent violator of the prohibitory laws on two counts, one for having intoxicating liquor in his possession and the other for transporting intoxicating liquor from one place to another. He appeals.
On Sunday night about 7 o’clock on September 1, 1935, the defendant was driving an automobile east on Laurel street in the city
The jury was advised that if they convicted defendant on the first cоunt they should not convict him on the second. The result of the trial was that defendant was convicted on the first, third and fourth counts. His motion for a new trial was overruled, and hе appeals.
The first specification of error argued by defendant is that the trial court admitted incompetent evidence.
It will be noted that the secоnd count of the information charged that the defendant, while operating an automobile when under the influence of intoxicating liquor, killed deceased. In order to establish this charge it was incumbent on the state to prove that defendant was intoxicated when the collision occurred. Several police offiсers testified that when they arrived on the scene shortly after-wards he was intoxicated. They testified they could tell that he was intoxicated by the way he talked, by the smеll of liquor on his breath and his actions in general. Early in the proceedings it became apparent that the defendant intended to contend that anything out of thе ordinary in his conduct shortly after the collision was due to his being injured and sustaining a shock to his nervous system
In this case the evidence to which objection was made was introduced to establish that the witnesses who testified that defendant was intoxicated were familiar enough with the actions and appearance of defendant tо be able to have an intelligent opinion on the subject. A police officer who had seen defendant intoxicated on other occasions' would be better able to tell that defendant was intoxicated rather than suffering from shock. We have concluded that the evidence in question was properly admittеd.
Defendant next argues that the trial court gave erroneous instructions to the jury. The instruction of which defendant complains was as follows:
“You are instructed that if you find from the evidence that the defendant [deceased] and her husband driving the automobile in which they were riding or either of them were reckless or negligent in approaching the intersection of Laurel and Twelfth streets and turning into said intersection when they knew or might have known that the defendant was driving a car from the west apрroaching said intersection and as a result thereof there might be a collision of the two automobiles and result in the death or serious injury of any or all parties in either of said automobiles, then you should take such facts and circumstances as disclosed to you by the evidence in this case, and after having done so and you have a reasonable doubt in your mind as to the guilt of the defendant, you should resolve that doubt in favor of the defendant and acquit him.”
Defendant argues that the duty оf the deceased and her husband when approaching the intersection should have been more clearly stated. In connection with the argument on this question defendant argues that his requested instructions numbers four and five should have been given.
The only difference between instruction fourteen that was given, and requested instructions four and five which were not given, is that the requested instruction tends to place upon the state the burden
The1 next argument made by defendant is that the verdict was contrary to the law. It will be noted that defendant was conviсted of being a persistent violator of the prohibitory law in two counts. Defendant points out that the proof offered showed that he had prior to this casе been convicted of a violation of one of the provisions of the prohibitory law. Defendant refers to R. S. 21-2146. It reads as follows:
“Any person, who, having oncе been duly convicted of violations of the prohibitory law and who shall thereafter, directly or indirectly, violate the provisions of the prohibitory liquor law, shall bе considered a persistent violator.”
It will be noted that the word “violations” is used. From this defendant argues that in order for him to be convicted as a persistent violаtor the state was bound to prove that he had been convicted of more than one previous violation. This court held to the contrary of this contention in State v. Watson,
The defendant next argues that the verdict of the jury was contrаry to the evidence. Defendant argues that the evidence discloses that the husband of the deceased was guilty of culpable negligence rather than thе defendant. Nothing would be added to the value of this opinion by detailing the evidence here. Suffice it to say that there was evidence both ways on the question. Under proper instructions the jury resolved the doubt against the defendant. There is nothing this court can do about it.
The judgment of the trial court is affirmed.