Opinion
7 Div. 937.
June 30, 1932. Rehearing Denied November 1, 1932.
Appeal from Circuit Court, Calhoun County; W. B. Merrill, Judge.
Howard Holley was convicted of driving a vehicle on the highway while intoxicated; and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Holley v. State, 225 Ala. 597, 144 So. 537.
The following charges were refused to defendant:
"3. I charge you, gentlemen of the jury, that if you believe from the evidence in this case that the collision between the defendant and Clarence Johnson occurred as a direct result of the negligence of Clarence Johnson, and if you find from the evidence that the defendant Howard Holley was not guilty of any negligence in the operation of his car, then I charge you that he is not guilty of driving a car while intoxicated as charged in the complaint, and you cannot convict him.
"4. I charge you, gentlemen of the jury, that in determining whether or not you believe beyond all reasonable doubt that the defendant is guilty of the offense charged against him, you may consider who was responsible for the collision which occurred between Howard Holley and Clarence Johnson, and if you find from the evidence in this case that the defendant Howard Holley was operating his car in a careful and prudent manner, you may consider this evidence in determining whether or not you believe beyond all reasonable doubt that he was guilty of the offense of driving an automobile while under the influence of liquor, and if after considering all of this testimony you have a reasonable doubt as to whether the defendant was driving an automobile while under the influence of liquor then you cannot convict him."
"12. I charge you, gentlemen of the jury, that before you can convict the defendant in this case, each and every one of you must believe beyond all reasonable doubt that the defendant was operating an automobile in Calhoun County while under the influence of liquor, and I further charge you that before you can convict him of the offense you must believe beyond all reasonable doubt and to a moral certainty, that he was under the influence of liquor to such an extent that he was not operating his car in a reasonably prudent manner."
Defendant was charged and convicted of a violation of section 1397 (50), Michie's Code, Acts of Alabama 1927, p. 365.
Young Longshore, of Anniston, for appellant.
A new offense cannot be charged by complaint in the circuit court on appeal from the county court. Echols v. State, 16 Ala. App. 138, 75 So. 814; Miles v. State, 94 Ala. 106, 11 So. 403; Brasher v. State, 22 Ala. App. 79, 112 So. 535. It was error for the court to charge the jury that it made no difference who was to blame for the wreck or what damage was done. Stone v. State, 105 Ala. 60, 17 So. 114; Murray v. State, 13 Ala. App. 175, 69 So. 354. The general conduct of the person and the way and manner in which he was operating his car were relevant for the jury to consider in determining whether the person was actually under the influence of liquor. Laws v. State, 209 Ala. 174, 95 So. 819; Pope v. State, 174 Ala. 63, 57 So. 245; Biggers v. State, 20 Ala. App. 632, 104 So. 681.
Thos. E. Knight, Jr., Atty. Gen., for the State.
Brief did not reach the Reporter.
The defendant was charged by affidavit in the court of common pleas of Calhoun county that he did drive a car along the highway of Calhoun county while intoxicated. On appeal to the circuit court, the solicitor filed his information, which charged the defendant "being under the influence of intoxicating liquors did drive a vehicle upon a highway in this state contrary to law." The point is here made that there is a variance between the original affidavit and the information as filed by the solicitor. The language used either in the affidavit or the information was sufficient, in common parlance, to charge an offense under the section above. Neither of them charged a violation of section 3324, Michie's Code, Acts 1919, p. 1002, § 28. That section applies alone to motor vehicles, while the section here is broader and covers any kind of vehicle.
The argument is made that there is a material substantial difference between "being under the influence of intoxicating liquors" and "being intoxicated." The difference is that of "Tweedle dee and Tweedle dum." If a man is under the influence of intoxicating liquors, he is intoxicated, and, if he is intoxicated within the meaning of this statute, he is under the influence of intoxicating liquor. There are perhaps as many stages of intoxication as there are varieties of Heinz pickles, and the party affected rarely knows when he passes from one to another. But, in whatever stage he is, if he drives a vehicle upon the public road he becomes a menace to the public and subjects himself to the penalties of the statute.
The evidence for the state tended to prove the charge and also to show a collision between defendant's car and the car of a man by the name of Johnson. All of the facts tending to prove the condition of defendant at that time were relevant and admissible, but, as to who was to blame or how much damage was done, were not issues involved in the trial of this case and the court so correctly charged the jury. Johnson, the driver of the other car, may also be guilty, but that fact would not exonerate the defendant.
Charges 1 and 2, being the general affirmative charges were properly refused.
Charge 3 was properly refused.
The negligence of Clarence Johnson has nothing to do with the question of defendant's intoxication; nor would defendant be necessarily innocent if he were free from negligence in driving the car.
Refused charge 4 is misleading. While the way and manner in which defendant was driving his car was relevant, as tending to prove whether or not he was intoxicated, the question of the responsibility for the collision between defendant's car and the Johnson car cannot be litigated in this case.
Refused charge 12 places a burden on the state not authorized by the statute. The question is not to what extent defendant was under the influence of liquor. The question is, Was he under the influence of liquor? The degree of intoxication may have its bearing on the severity of the punishment, but not on the question of guilt.
We find no error in the record, and the judgment is affirmed.
Affirmed.