State v. Moore , 245 N.C. 158 ( 1956 )

95 S.E.2d 548 (1956) 245 N.C. 158

STATE
v.
Squire MOORE, Jr.

No. 584.

Supreme Court of North Carolina.

December 12, 1956.

Robert S. Cahoon, Greensboro, for defendant appellant.

George B. Patton, Atty. Gen., Robert E. Giles, Asst. Atty. Gen., for the State.

WINBORNE, Chief Justice.

While this appeal contains numerous assignments of error, founded upon exceptions to evidence offered, and to the charge, the basic question presented is this: Did the trial court err in finding the witness Davis (1) qualified as an expert to testify on the subject of chemical analysis of human blood to determine alcoholic content thereof, and (2) qualified as an expert to testify as to the effects of certain percentages of alcohol in the blood stream?

If the witness were qualified, his testimony was competent, and if he were not, it would be incompetent.

In this connection this Court has uniformly held that the competency of a witness to testify as an expert is a question primarily addressed to the court, and his discretion is ordinarily conclusive, that is, unless there be no evidence to support the finding, or unless the judge abuse his discretion. LaVecchia v. North Carolina Joint Stock Land Bank, 218 N.C. 35, 9 S.E.2d 489, and cases cited. See also State v. Smith, 221 N.C. 278, 20 S.E.2d 313; In re Humphrey, 236 N.C. 142, 71 S.E.2d 915; Samet v. Boston Ins. Co., 237 N.C. 758, 75 S.E.2d 913. Annotation 166 A.L.R. 1067.

In the Smith case, supra, Seawell, J., writing for the Court, declared [221 N. C. 278, 20 S.E.2d 319]: "The qualification of a witness to give an opinion as one skilled, or, as it is usually termed, an expert, depends on matters of fact and the question is addressed to the trial judge, with opportunity to the objector to test the experience of the witness by appropriate examination. Regardless of the professional label, it is for the court to say whether the witness is qualified to testify as one skilled in the matter at issue, and his finding will not be disturbed when there is evidence to support it, and the discretion has not been abused."

Here the witness testified in detail as to his study, training and experience. He was then tendered by the State as an expert haemotologist and clinical technologist and technician and chemist. Objection by defendant was overruled, and the witness was permitted to testify in the capacity of an expert. This was tantamount to the judge holding him to be an expert in the field of his testimony. The testimony indicates the knowledge and experience of the witness in conducting experiments as to alcoholic content in the blood of a human being, and as to the effect of alcohol upon the human system in respect to intoxication, when introduced into the blood stream. Thus it appears that there is abundant evidence to support the holding of the judge that the witness Davis is such expert.

Indeed in State v. Willard, 241 N.C. 259, 84 S.E.2d 899, this Court considered the question as to whether expert testimony as to the results of a blood test taken after a defendant's arrest on charge of driving under the influence of an intoxicating beverage is admissible in the courts of this State. In that case the witness was R. B. Davis, Jr., the same person as here. The trial court there held him to be an expert chemist and haemotologist, and defendant made no objection. And this Court held there that the expert testimony (given by the witness Davis) as to the results of tests of defendant's blood was admissible on the trial of the case on the charge of driving a motor vehicle upon the public highways within the State while under the influence of intoxicating beverage. G.S. § 20-138.

Now on the present record it appears that this same witness has run tests correlating his observation of individuals, in a hundred cases, with his findings of the blood tests, and that in all cases where the person's appearance would indicate intoxication, his test bore it out. And he testified that based upon his education, training and experience in the analyzing of blood, particularly with reference to the alcoholic content, he is able to give an opinion as to whether or not a person is under the influence of some intoxicating beverage from the results of his laboratory tests and results of his finding in regard to the alcoholic content of that blood.

Hence it does not appear that the trial judge abused his discretion in holding the witness Davis an expert. Therefore his testimony to which defendant excepts is competent evidence for the consideration of the jury.

Moreover the assignments of error, based upon exceptions to portions of the charge, apparently are predicated upon contention that because evidence was erroneously admitted, the charge is in error. No error, however, is made to appear.

All assignments of error have been duly considered, and in the trial from which appeal is taken, there is no error.

However, appeal having been taken to entry of judgment, suspending prison term, the judgment is stricken and the cause remanded for proper judgment. See State v. Ritchie, 243 N.C. 182, 90 S.E.2d 301, and cases cited. Also State v. Ingram, 243 N.C. 190, 90 S.E.2d 304.

Error and remanded.

JOHNSON, J., not sitting.