{
  "id": 8722715,
  "name": "Atha v. State",
  "name_abbreviation": "Atha v. State",
  "decision_date": "1950-06-19",
  "docket_number": "4628",
  "first_page": "599",
  "last_page": "602",
  "citations": [
    {
      "type": "official",
      "cite": "217 Ark. 599"
    },
    {
      "type": "parallel",
      "cite": "232 S.W.2d 452"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "212 Ark. 948",
      "category": "reporters:state",
      "reporter": "Ark.",
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      ],
      "weight": 2,
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    {
      "cite": "145 S. W. 883",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
      "opinion_index": 0
    },
    {
      "cite": "103 Ark. 87",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
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  "last_updated": "2023-07-14T21:48:24.265381+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Atha v. State."
    ],
    "opinions": [
      {
        "text": "Leflar, J.\nDefendant Atha was \u2022 convicted of the crime of operating an automobile \u201cupon the public highway while under the influence of intoxicating liquors\u201d in violation of Ark. Stats. (1949 Supp.), \u00a7 75-1023 (Act 255 of 1949).\n' As one ground for appeal, defendant questions the sufficiency of the evidence to support the jury\u2019s verdict. The evidence on which defendant was convicted included the testimony of the sheriff and a deputy , sheriff who were driving late at night in a car a little behind the car which defendant was driving. Both these witnesses stated that defendant was zig-zagging from side to side as he drove down Washington street near the courthouse in Murfreesboro, and that he staggered and smelled of whiskey when they stopped his car and ordered him out of it a few moments later. Several witnesses for defendant testified that they had been with him during various parts of the evening, that they had not seen him take a drink, and that he did not appear to be intoxicated. Defendant himself testified that he liad not had a drink of liquor for several weeks. Under this state of the evidence the jury was free to decide the case either way. We cannot say that its verdict of \u201cGuilty\u201d was without substantial evidence to support it.\nDefendant also complains that there was a variance between the indictment and the proof, in that the indictment alleged drunken driving on a \u201cpublic highway\u201d whereas the evidence showed that defendant was driving on Washington street in Murfreesboro. We do not regard this as a variance at all. Assuming that Washington street is not on a state-numbered highway, it is still itself a \u201cpublic highway\u201d according to the \u201cusual acceptation in common language\u201d which by Ark. Stats., \u00a7 43-1023, we are required to employ in construing the words of an indictment. Defendant was in no wise misled by the words used. He knew that Ark. Stats. (1949 Supp.), \u00a7 75-1023, under which he was indicted, made it a crime to drive while intoxicated \u201cupon any of the highways, streets or roadways within the State of Arkansas, \u2019 \u2019 and the evidence made it clear that he knew at all times that he was being charged specifically with drunken driving on Washington street in Murfreesboro. There could not possibly have been anjr \u201cprejudice of the substantial rights of the defendant on the merits\u201d within the meaning of Ark. Stats., \u00a7 43-1012.\nComplaint is made of the fact that the Circuit Clerk was allowed to testify that the defendant had previously been convicted of drunken driving. The statute under which he was tried, in a later section, specifically authorizes such evidence for the purpose of imposing a heavier penalty in event of second or subsequent convictions for driving while drunk. Ark. Stats. (1949 Supp.), \u00a7 75-1024. The Circuit Judge expressly told the jury that the evidence was admitted for this and no other purpose. There was no error in this.\nFinally defendant argues there was error in allowing him to be cross-examined, when he voluntarily took the stand as a witness for himself, about prior convictions for drunkenness and bootlegging. Such questioning on cross-examination is proper, for the purpose of testing-credibility of the witness. Benson v. State, 103 Ark. 87, 145 S. W. 883; Bookman v. Rorex, 212 Ark. 948, 208 S. W. 2d 991. The Court properly instructed the jury that credibility was tlie only issue upon which this testimony should be considered.\nNo error appearing, the judgment of the Circuit Court is affirmed.",
        "type": "majority",
        "author": "Leflar, J."
      }
    ],
    "attorneys": [
      "Tom Kidd, for appellant.",
      "Ike Murry, Attorney General and Robert Downie, Assistant Attorney General, for appellee."
    ],
    "corrections": "",
    "head_matter": "Atha v. State.\n4628\n232 S. W. 2d 452\nOpinion delivered June 19, 1950.\nRehearing denied October 2, 1950.\nTom Kidd, for appellant.\nIke Murry, Attorney General and Robert Downie, Assistant Attorney General, for appellee."
  },
  "file_name": "0599-01",
  "first_page_order": 623,
  "last_page_order": 626
}