Randolph v. State

GRAVES, Judge.

Appellant was convicted by a jury of driving an automobile on a public highway while intoxicated, and fined the sum of $100.00.

The facts are rather peculiar. It is shown that appellant, driving an automobile, came into the town of Albany, in such county, at a high rate of speed and failed to make an abrupt turn therein, and as a consequence ran completely across the street on his lefthand side and into a barber shop and a grocery store, demolishing a portion of the barber shop. As to appellant’s condition relative to intoxication, the testimony was conflicting, some witnesses testifying as to his being intoxicated, others as to appellant’s sobriety. Probably appellant solved the difficulty for the jury concerning this contradictory testimony by taking the stand himself, and assisted in his conviction by stating that he had made a statement before the county judge on his examining trial, which was the truth when made, and was still the truth at the time he was testifying herein. We think the statement, which follows, doubtless was effective with the jury:

“* * * About nine or ten o’clock that morning (of the accident) I began drinking whisky. About eleven o’clock I left Rochester driving a car by myself and drove to Rule, Haskell, Throckmorton-, Fort Griffin and Albany. I stopped about three minutes at Fort Griffin to get beer, but they did not have any. On coming into Albany at about one o’clock P. M. the car which I was driving ran into a grocery store and barber shop after failing to make a right turn. By this time I had drunk altogether about a half pint of whiskey since nine or ten o’clock that morning, drinking along about a swallow at a time. * *

The original testimony given by appellant herein, however, claimed that he had taken but two small drinks out of a bottle, found in the wrecked car, although appellant reaffirmed that the above quoted statement was still true. We think that in the controversy as to the facts, the finding of guilt by the jury has sufficient support, it being their province to decide such controverted matters.

He complains, however, of the trial court overruling his motion for a continuance because of the absence of Mr. Keller, the owner of the car which appellant was driving at the time herein alleged. It was alleged in such motion that appellant had borrowed such car from Mr. Keller, and that at such time there was in the car a pint bottle about half full of liquor, it being the same bottle found by the officers in the car when same was wrecked, such bottle being about half full when found by the officers.

Appellant’s application for a continuance evidences a lack of diligence upon his part. It is shown that this complaint was filed on July 6, 1942; that a subpoena was requested for Mr. Keller on July 29, 1942, five days prior to this trial and twenty-three days after this charge was filed, and a subpoena was issued on the same day. The subpoena is not found in the record, but appellant says in his motion that immediately after the issuance of such subpoena he personally contacted the desired witness, .who told appellant that he would be physically unable to attend this trial, and if necessary the witness would obtain a doctor’s certificate showing his inability to attend this trial on August 1, 1942. There is, however, no such certificate found in the record, and no subpoena is attached to such motion.

The absence of any affidavit from Keller would justify the trial court in concluding that he would not have given such testimony had he been present. We said in Trotti v. State, 135 Tex. Cr. R. 196, 118 S. W. (2d) 311:

“In her motion for a new trial, she complained of the action of the court in overruling her application for a continuance, but no affidavit by the absent witness is attached to the motion showing that the witness, if he had been present, would have given testimony material to her defense; nor has she satisfactorily accounted for her failure to obtain such affidavit. See LaFitte v. State, 122 Tex. Cr. R. 239, 54 S. W. (2d) 133. Under .the circumstances, the trial court could have reached the conclusion that the absent witness would not have testified as claimed by her.”

We are also of the opinion that appellant failed to exercise sufficient diligence in failing to subpoena this witness for about 23 days after the filing of the complaint and information.

It is also contended that the trial court erred in failing to instruct the jury as to the meaning of the term “under the influence of intoxicating liquor.” Such a term has been held not to be a technical term as needed definition or explanation, but same has an ordinary meaning commonly understood. See Scott v. State, 95 S. W. (2d) 396; Lockhart v. State, 108 Tex. Cr. R. 597, 1 S. W. (2d) 894; Moynahan v. State, 140 Tex. Cr. R. 540, 146 S. W. (2d) 376; Cox v. State, 150 S. W. (2d) 85, 141 Tex. Cr. R. 561; Davis v. State, 155 S. W. (2d) 801.

The remaining portion of the trial court’s charge is in conformity with a charge requested in whole by appellant.

. We perceive no error in the record, and the judgment .is therefore affirmed.