Judges: PER CURIAM:
Attorneys: Joseph W. Nichols, for appellant.
J. Tom Watson, Attorney General, John C. Wynn, Assistant Attorney General, and Bourke Floyd, Special Assistant Attorney General, for appellee.
Filed: Apr. 11, 1944
Latest Update: Mar. 02, 2020
Summary: Appellant was convicted of manslaughter on an information in two counts. The first charged the killing of one Grover C. Folks by driving an automobile onto him while intoxicated. The second count charges culpable negligence resulting in the killing. *Page 548 He questions the sufficiency of the evidence and also the propriety of taking samples of his blood immediately after his arrest to determine by chemical analysis whether he was intoxicated. A resume of the evidence here would serve no usefu
Summary: Appellant was convicted of manslaughter on an information in two counts. The first charged the killing of one Grover C. Folks by driving an automobile onto him while intoxicated. The second count charges culpable negligence resulting in the killing. *Page 548 He questions the sufficiency of the evidence and also the propriety of taking samples of his blood immediately after his arrest to determine by chemical analysis whether he was intoxicated. A resume of the evidence here would serve no useful..
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I dissent from order adhering to our former judgment of affirmance, because it appears to me:
(a) that the evidence is not sufficient to show that certain blood which was examined by the physician who testified in the cause in regard to same was taken from the defendant.
(b) I entertain the view that the evidence as to the analysis of the blood was not legally admissible in evidence even if it was the blood of the defendant, because it was taken under such circumstances as to preclude its admissibility in that no warning was given defendant that his blood was being taken for the purpose of making an analysis which would be used against him in a criminal prosecution. See Bethel, et al., v. State, 10 S.W.2d 370; State v. Horton,
153 S.W. 1051; State v. Matsinger, 180 S.W. 856; State v. Newcomb, 119 S.W. 405; People v. Corder, 244 Mich. 274; People v. Dennis, 226 N.Y.S. 689; Wragg v. Griffin, 170 S.W. 400; People v. Akens, 25 Cal. Ap. 373.
There appear to be some authorities contra, but I think evidence procured by the means adopted in this case should not be admitted, especially when there is room for serious doubt as to the origin of the evidence. In this case the admitting of the evidence may constitute harmless error and, therefore, not be ground for reversal. However, I think it was error and should be so held.
