State v. Willard
84 S.E.2d 899
N.C.
1954
Check Treatment
Winborne, J.

The record on this appeal contains several pages of unnumbered assignments of error based upon numerous еxceptions taken by defendant upon, and in the course of the trial in Superior Court, relating in the main to testimony of the witness Davis, an expert chemist and hematologist, as to the alcoholic content in specimen of defendant’s blood, and as to the effect of alcohol upon the human being when taken into the system. Yet no one of the exceрtions is brought forward, or mentioned, in defendant’s brief, and no reason or argument has been stated or authority cited therein in support of any particular exception. In such case, under Rule 28 of the Rules of Practice in the Supreme Court, 221 N.C. 544, at pages 562-3, all of the exceptions will be taken as abandoned by appellant.

Here appellant cоntents himself by stating in his brief, as questions involved, these two:

“1. Is expert testimony as to the results of a blood test taken after a defendant’s arrest on a charge ‍​‌​​‌​​‌​‌‌‌‌‌‌‌‌​‌‌‌​​‌‌​‌​‌‌‌‌​​‌‌​‌‌​​​‌‌‌​​‌‍of driving under the influence of an intoxicating beverage admissible in the courts of this State ?
“2. Did the Sоlicitor for the State argue improperly to the jury, under the facts of the record in this case, by saying: ‘Don’t kill my child’ ?”

This is not sufficient tо bring up for consideration the matters to which exceptions shown in the record relate. But if it were, consideration оf the factual situation in the case in respect to the subject matter thereof, in the light of applicable prinсiples of law, the first question merits an affirmative answer, and the second a negative one.

It seems clear that the first quеstion is restricted to the question of the competency of testimony of an expert, who is qualified to make a test fоr alcoholic content in human blood, as to results obtained upon such a test of the blood of defendant. The mattеr of the competency of testimony as to the effect any given quantity of alcohol found in the blood stream would hаve upon a human being, the defendant, is not included in the phraseology of the question. Nor does it bring into question the matter of compulsory self-incrimination. N. C. Const., Art. I, Sec. 11.

In such light it is appropriate to see what the annotators of decided сases have to say on the subject of “Admissibility ‍​‌​​‌​​‌​‌‌‌‌‌‌‌‌​‌‌‌​​‌‌​‌​‌‌‌‌​​‌‌​‌‌​​​‌‌‌​​‌‍and weight of evidence based on scientific test for intoxication or prеsence of alcohol in the system” : In Annotation 159 A.L.R. 209, supplementing annotation on same *263 subject in 127 A.L.R. 1513, it is said: “From tbe cases generally, it is apparent that, subject to cоmpliance with conditions as to relevancy in point of time, tracing and identification of tbe specimen, accuracy of tbe analysis, and qualification of tbe witness as an expert in tbe field, there is ratber general agreement tbat where tbe prosecution in a criminal case seeks to establish tbe intoxication of tbe accused, evidenсe as to tbe obtaining of a specimen of bis body fluid at or near the time in question, evidence as to the alcohоlic content of such specimen, as determined by scientific analysis, and expert opinion testimony as to what tbe presence of tbe ascertained amount of alcohol in tbe blood, urine, or other body fluid of an individual indicates with rеspect to tbe matter of such individual’s intoxication or sobriety, is ordinarily admissible as relevant and competent evidence upon the issue of intoxication, at least where tbe accused furnished tbe specimen for tbe test, or submitted withоut objection to its taking.”

Indeed, in our own reports we have S. v. Cash, 219 N.C. 818, 15 S.E. 2d 277, a case in which numerous exceptions were taken to tbe admission and exclusion of evidеnce and in which defendant complained in this respect tbat while be was in jail, specimens of bis blood and urine were tаken for chemical analysis to determine the presence or absence of alcohol and morphine in bis systеm, and contended tbat in this way be was compelled to give evidence against himself in violation of the constitutional inhibition against compulsory self-incriminaton. N. C. Const., Art. I, Sec. 11. In connection therewith, this Court, in opinion by Stacy, C. J., wrote as follows: “Tbe record fails to disclose any compulsion on the part of tbe officers in obtaining specimens of tbe defendant’s blood аnd urine. Tbe exceptions are therefore feckless. S. v. Eccles, 205 N.C. 825, 172 S.E. 415. They are not sustained. It is tbe rule in this jurisdiction tbat physical facts disсovered by witnesses on information furnished ‍​‌​​‌​​‌​‌‌‌‌‌‌‌‌​‌‌‌​​‌‌​‌​‌‌‌‌​​‌‌​‌‌​​​‌‌‌​​‌‍by tbe defendant may be given in evidence, even where knowledge of such facts is obtained in a privileged manner, S. v. Garrett, 71 N.C. 85 (examination by physician), by force, S. v. Graham, 74 N.C. 646 (compelling accused to put bis shoe in track), by intimidation, duress, etc. Factual informatiоn thus brought to light is competent evidence, though tbe declarations of tbe accused made at tbe time, if obtained by imрroper influence, are to be excluded. S. v. Gatton, 60 Ohio App. 192, 20 N.E. 2d 265.”

To like effect in principle are S. v. Rogers, 233 N.C. 390, 64 S.E. 2d 572, opinion by Ervin, J., and S. v. Grayson, 239 N.C. 453, 80 S.E. 2d 387, opinion by Parker, J.

Therefore, tbe expert testimony as to tbe results of test of defendant’s blood was admissible on tbe trial of this case on a charge of driving a *264 motor vehicle upon the public highways within the State while under the influence of intoxicating beverages. G.S. 20-138.

Moreover, it is not amiss to note that in this State a lay witness is competent to testify whether or not in his ‍​‌​​‌​​‌​‌‌‌‌‌‌‌‌​‌‌‌​​‌‌​‌​‌‌‌‌​​‌‌​‌‌​​​‌‌‌​​‌‍opinion a person was under the influence of an intoxicant on a given occasiоn on which he observed him. See S. v. Leak, 156 N.C. 643, 72 S.E. 567; S. v. Jessup, 183 N.C. 771, 111 S.E. 523; S. v. Holland, 193 N.C. 713, 138 S.E. 8; S. v. Dills, 204 N.C. 33, 167 S.E. 459; S. v. Harris, 209 N.C. 579, 183 S.E. 740; S. v. Dawson, 228 N.C. 85, 44 S.E. 2d 527; S. v. Warren, 236 N.C. 358, 72 S.E. 2d 763.

And as to when a person is under the influence of an intoxicant, see definition in S. v. Carroll, 226 N.C. 237, 37 S.E. 2d 688.

In the light of thesе eases, there is in the present case abundant evidence, without any of testimony as to results of the blood test, to suрport the verdict and judgment pursuant thereto.

Now as to the second question: Defendant contends that the remark of the Solicitor is improper and prejudicial under the principles applied in S. v. Little, 228 N.C. 417, 45 S.E. 2d 542; Cuthrell v. Greene, 229 N.C. 475, 50 S.E. 2d 525; and S. v. Smith, 240 N.C. 631, 83 S.E. 2d 656. In the absence of the factual setting of the remark, it is not made to appear that it was an abuse of fair debate and prejudicial. ‍​‌​​‌​​‌​‌‌‌‌‌‌‌‌​‌‌‌​​‌‌​‌​‌‌‌‌​​‌‌​‌‌​​​‌‌‌​​‌‍Nor does the fаct that the trial judge failed to instruct the jury in respect to it throw light upon the situation.

For reasons stated, there is in the judgment from which appeal is taken

No error.