Opinion
4 Div. 957.
June 6, 1933.
Appeal from Circuit Court, Pike County; W. L. Parks, Judge.
Jim Ballard was convicted of driving a vehicle upon the public highway while intoxicated, and he appeals.
Affirmed.
This charge was refused to defendant: "C. The fact that a man has taken one or two drinks of intoxicating liquors does not alone and by itself necessarily mean that he is intoxicated."
Walters Walters, of Troy, for appellant.
There are different degrees of intoxication; and, as to degree, there is a distinction between one being drunk or intoxicated and one who is drinking. May v. State, 167 Ala. 36, 52 So. 602. While a properly qualified witness may give his opinion that a person is drunk or intoxicated, he cannot give his opinion as to the extent of intoxication. May v. State, supra; Hargrove v. State, 22 Ala. App. 67, 111 So. 587; White v. State, 103 Ala. 77, 16 So. 63. Opinion testimony must be based upon knowledge of sufficient facts authorizing an opinion, and the witness must be properly qualified to form an opinion from these facts. 22 C. J. 519-522. It is error to admit testimony as to smelling whisky on defendant, where witness did not qualify as to knowledge of smell of whisky. Pinnington v. State, 24 Ala. App. 227, 133 So. 311. A person cannot be said to be intoxicated when his potations do not affect or interfere with his mental or physical faculties. Code 1923, § 3883, note; Roden v. State, 136 Ala. 89, 34 So. 351. An abuse of discretion as to refusal of a continuance by which the party was prevented from having a fair trial is ground for a new trial. Code 1923, § 9518; Walker v. State, 117 Ala. 85, 23 So. 670; Thomas v. State, 15 Ala. App. 408, 73 So. 558. Evidence of intoxication of witness some time after the collision was inadmissible. Phillips v. State, ante, p. 286, 145 So. 169.
Thos. E. Knight, Jr., Atty. Gen., for the State.
Brief did not reach the Reporter.
The defendant, driving a Chrysler car, dashed down North Three Notch street in the city of Troy at 2:30 a.m., struck a barrier in the middle of the street erected to protect some repair work and on which was a torch burning; swerved, knocked down an iron electric light post, turned, went back up North Three Notch street for two blocks, turned into a side street, stopped his car, got out, and walked back towards town, where he was arrested by three policemen, all of whom had seen the performance and who testified that they could smell whisky on defendant's breath, and that he was under the influence of whisky.
The defendant admitted the driving of the car and the wreckages above described, but denied that he had been drinking or that he was under the influence of whisky.
From the above it would appear that the defendant was either drunk or crazy. There was no plea of insanity, and the jury found that he was drunk. This was a question of fact properly submitted to them.
It is insisted by counsel that there are degrees in drunkenness, and that there is a distinction between being drunk and drinking, and it is so decided in May v. State, 167 Ala. 36, 52 So. 602, but that distinction can avail this defendant nothing; the question here is, not how drunk, but was he under the influence of liquor, and that was a question for the jury.
A witness who knows may testify that a certain person is drinking or drunk, and who is more qualified to so testify than police officers whose constant duty it is to handle such cases? The symptoms of intoxication are plain and apparent to any experienced man, except the man himself, whose testimony as to his sobriety has little weight with men who are familiar with such things.
The granting or refusal of continuances is largely within the discretion of the trial court, and not to be reviewed, unless there is a clear abuse of such discretion, which does not appear in this record.
Refused charge A, being the general affirmative charge, and the evidence being in conflict, was properly refused.
Charge B was practically the same as given charge C.
Refused charge C is invasive of the province of the jury.
There is no prejudicial error in any ruling of the court, and the judgment is affirmed.
Affirmed.