Inness v. State , 106 Tex. Crim. 524 ( 1926 )

A deputy sheriff testified that he saw the appellant driving his automobile upon the street. Quoting the witness, he said:

"I went out to his car. Roy was driving it, and at that time, he was drunk."

On cross-examination he said:

"I did not know what he was drinking. I judge he was drunk from his appearance, * * * and his breath. He had no whiskey there, but had some empty bottles."

On re-direct examination he said:

"I could tell the contents of the bottles from the smell. It smelled like 'jake.' These were soda-water bottles, and had had 'jake' or jamaica ginger in them. When he drove up there and stopped his car, he fell over on the steering wheel, and I could see that he was drunk. At that time I smelled his breath. From my experience as an officer, I would say he had been drinking 'shinney'."

Another witness, Wilson, testified that he saw the appellant and said that he was drunk. He said:

"Of my own knowledge, I could not say he was actually 'dog drunk,' but he was drunk; but I could tell he had been drinking pretty heavily. I could smell his breath and tell he was drinking, but I don't reckon I could tell exactly what he had been drinking."

In his motion for rehearing, appellant earnestly contends that the case is one which depends upon circumstantial evidence alone. Circumstantial evidence is defined thus:

"It is evidence of more facts than one, which, in combination, create the presumption that still another fact exists."

See Bishop's New Crim. Proc., 4th Ed., Vol. 1, p. 672, Sec. 1073. A charge on circumstantial evidence is required when the state relies solely upon that character of evidence to secure a conviction. Hunnicutt v. State, 18 Tex.Crim. Rep., and other cases collated in Michie's Encyc. Digest of Tex Crim. Rep., Vol. 4, p. 502.

In the present case the gist of the offense was the drunkenness of the accused while he was driving an automobile. The mere fact that he was driving an automobile would not take the case out of the law of circumstantial evidence. In the present instance, however, we do not think that the drunkenness was proved by circumstances alone. In Underhill's Crim. Ev., 3rd Ed., Sec. 278, it is said:

"A non-expert witness may testify that the accused or some other person was intoxicated on a given date."

This announcement is supported by many authorities collated in the note. Among them is the case of Commonwealth of Pennsylvania v. Eyler, 217 Pa. 512. This case is also reported in 11 L. R. A. (N.W.), p. 639, where will be found an exhaustive note, from which we quote:

"Since drunkenness is of such common occurrence that its recognition requires no peculiar scientific knowledge, and since it is practically impossible to describe the minute and peculiar appearance of a person, his acts, gestures, looks, and other indications of a state of sobriety, or of intoxication, thus making an expression as to whether or not a person is intoxicated, in effect a statement of a fact rather than a mere opinion as to the existence of a fact, it has been held as a general rule, without a single decision found to the contrary, that a witness not an expert may give his opinion as to whether or not a person is intoxicated, it naturally being understood that he had the opportunity to observe the facts upon which he bases his opinion."

The statement by each of the state's witnesses that the appellant was drunk is a statement of fact. The correctness of the conclusion or statement in the present case is tested by cross-examination, and the surrounding facts, confirmatory of the main fact, were properly developed in order that the jury might determine the issue, that is, whether the presumption of innocence was overcome, but the development of the confirmatory circumstances did not, in our opinion, convert the present case into one depending alone upon circumstantial evidence.

The motion is overruled.

Overruled.