State v. ReifsteckState v. Reifsteck
2. VERDICT: Imprisonment in State Prison. The use of the words “at State prison” in a verdict by which the jury “find the defendant guilty as charged in the information, and assess his punishment at State prison for a term of three years,” is irregular, but the words may be construed to mean the equivalent of “imprisonment in the State Penitentiary,” and are not prejudicial, since their meaning may readily be understood.
3. SUFFICIENT EVIDENCE: Intoxicated Driver: Passion and Prejudice. Evidence that defendant obtained a half-gallon jug of wine, and took from it six drinks or more; that he bartered some of the wine for whisky and drank copiously of that; that he drove the automobile in a ditch, mistaking it for a pavement; that he became garrulous and engaged in drooling talk; that after the car was extricated from the ditch he drove it in a winding course, and the testimony of numerous witnesses, among them a physician, that he was drunk, is sufficient to support a charge that he operated a motor vehicle while in an intoxicated condition, and destroys an assignment that the jury in returning a verdict of guilty were moved by passion and prejudice.
4. ASSIGNMENTS: Specific Detail. Assignments that the court erred in failing to instruct upon the law pertaining to the case, and in admitting incompetent, irrelevant and immaterial testimony, do not comply with
5. INSTRUCTION: Intoxicated Condition: Failure to Define. The words “intoxicated condition” are of common every-day use, having a well-defined and a well-understood meaning, and the failure of the court to define them in an instruction to the jury, in the trial of a defendant charged with operating a motor vehicle while in an intoxicated condition, is not error.
The evidence on behalf of the State tends to show that on June 25, 1925, the defendant at a certain highway corner in Jefferson City, accosted two boys about seventeen years of age, whom he knew, offering to drive them to the Jefferson Theatre. On their way to their destination in his Ford touring car, defendant suggested to the boys that they accompany him to Loose Creek, several miles east of the city, to which they assented. Arriving at Loose Creek, defendant entered a certain house, emerging with a half-gallon jug of wine. Defendant gave of the wine to the boys to drink, the boys taking two or three and the defendant six or more drinks. Shortly thereafter defendant beheld a man along the road tippling whiskey from a bottle. Coveting his neighbor‘s possessions, defendant negotiated an exchange of commodities, bartering the wine for the whiskey, and did drink copiously thereof. His thirst being quenched, defendant began a tortuous course in the Ford homeward, mistaking a ditch for the pavement. The many travelers of the road proved to be Samaritans rather than Pharisees, for besides stopping, offering assistance and extricating his car from the ditch, they were present at the trial in large numbers, their testimony as to his happy and loquacious condition materially aiding in providing him with free lodging and board for a term of three years. The car was afterwards driven from the ditch by a boy scout, and defendant operated it in a serpentine trail along the road. A half dozen or more witnesses testified that he was drunk, among whom was a physician. The defendant admitted to the travelers that he was drunk. Other pertinent facts, if any, will later appear.
Information.
I. The information is grounded on
Verdict.
II. We have examined the remaining portions of the record proper as required by statute and find no irregularity therein unless such complaint can be made of the verdict. It is as follows: “We, the jury, find the defendant guilty as charged in the information, and assess his punishment at State prison for a term of three years.” Reviewing it, we find no room for doubt that by their verdict the jury found defendant guilty of operating a motor
Sufficient Evidence.
III. The case is not briefed by defendant. Thus the motion for a new trial constitutes the assignment of errors. The first assignment complains that the verdict is contrary to the evidence. The fifth charges the jury was moved by passion and prejudice. We treat these assignments as equivalent and as bringing up for review the question of substantive evidence sufficient to make it a submissible case. That substantive evidence of defendant‘s guilt obtained, obliging the court nisi to submit the case to the jury, is clear. The evidence of the drinking of both wine and whiskey, the mixing of the potables, the garrulousness and the drooling of defendant, the driving of the car into the ditch and later in a winding course, together with the evidence of witnesses as to his drunken condition justified the jury in finding defendant guilty of driving a motor vehicle while in an intoxicated condition. No error appears in this regard.
Assignments.
IV. The second assignment avers that the court erred in failing to instruct the jury upon the law pertaining to the case. The fourth charges the trial court erred in admitting incompetent, irrelevant and immaterial testimony offered by the State through the witnesses West and Rollins. Irrespective of whether or not these assignments were ever sufficient, it is plain that, in accordance with the ruling in State v. Standifer, 289 S. W. 856, the assignments of error must be set out in the motion for a new trial specifically, with particularity and in detail, in compliance with the injunctions of
V. The third assignment holds the court erred in failing to define in its instructions to the jury the meaning of the words “intoxicating condition,” in connection with the operation of a motor vehicle. The actual words used in the instruction were “intoxicated condition.” The use of the word “intoxicating” in the assignment for “intoxicated” in the instruction we charge to a clerical error and cast aside, as unworthy of discussion, the question of error in the inadvertent substitution of words. However, the words “intoxicated
Finding no prejudicial error, the judgment is affirmed. Higbee and Henwood, CC., concur.
PER CURIAM:—The foregoing opinion by Davis, C., is adopted as the opinion of the court. All of the judges concur.