{ "id": 8621115, "name": "STATE v. W. J. KELLY", "name_abbreviation": "State v. Kelly", "decision_date": "1946-12-11", "docket_number": "", "first_page": "62", "last_page": "64", "citations": [ { "type": "official", "cite": "227 N.C. 62" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "218 N. C., 122", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614236 ], "opinion_index": 0, "case_paths": [ "/nc/218/0122-01" ] }, { "cite": "194 S. E., 498", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "212 N. C., 758", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619652 ], "opinion_index": 0, "case_paths": [ "/nc/212/0758-01" ] }, { "cite": "135 S. E., 456", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "192 N. C., 580", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625212 ], "opinion_index": 0, "case_paths": [ "/nc/192/0580-01" ] }, { "cite": "45 S. E., 349", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "133 N. C., 59", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656196 ], "opinion_index": 0, "case_paths": [ "/nc/133/0059-01" ] }, { "cite": "39 S. E., 821", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "129 N. C., 195", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659633 ], "opinion_index": 0, "case_paths": [ "/nc/129/0195-01" ] } ], "analysis": { "cardinality": 351, "char_count": 5495, "ocr_confidence": 0.471, "pagerank": { "raw": 4.2612942133091924e-07, "percentile": 0.9154095470430902 }, "sha256": "59e3f5ffacb6c1044099a56f6dded281956319b557b4fdc4f1099d49b0c7bf4f", "simhash": "1:33efe5903027b0d1", "word_count": 962 }, "last_updated": "2023-07-14T16:20:04.384970+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. W. J. KELLY." ], "opinions": [ { "text": "Denny, J.\nThe State offered evidence tending to show that the defendant operated his automobile on Highway 74, within the city limits of \"Wadesboro, on Friday, 1 December, 1944, about 11:40 p.m., while under the influence of an intoxicant. The defendant offered evidence tending to show he was not under the influence of an intoxicant at the above time. The evidence is in sharp conflict.\nThe defendant assigns as error the admission of evidence, over his objection, to the effect that he was found drunk in his place of business on the following Saturday afternoon, and to the court\u2019s instruction to the jury in connection therewith, in the following language: \u201cGentlemen of the jury, the condition of the defendant on Saturday afternoon will only be considered by you as tending to show what his condition was at the time he is alleged to have been driving his car drunk and for no other purpose.\u201d\nThe State contends that where there is evidence of defendant\u2019s intoxication at the time in question, that evidence of his intoxication several hours afterwards should not be held inadmissible but should be allowed; and that the remoteness should go to its weight and not to its .admissibility. If the rule be otherwise, where is the line to be drawn between evidence that is too remote and evidence that is not ?\nMore than twelve hours elapsed between the time the defendant is charged with operating his automobile while under the influence of liquor and the following Saturday afternoon when he was found drunk in his place of business. We do not think evidence that the defendant was drunk on Saturday afternoon, some twelve or fourteen hours after the time in question, is admissible as evidence or corroborative evidence as to the condition of the defendant at the time he was driving his automobile the night before. 32 C. J. S., 579, p. 433, et seq.\nThe State did not offer evidence tending to show that the defendant was intoxicated continuously from 11:40 p.m., on 1 December, until the afternoon of the next day. None of the witnesses for the State saw the defendant after midnight Friday until the following afternoon.\nWhere the line is to be drawn between evidence that is too remote and evidence that is not, is not a new question. The rule in this respect, which is in accord with our decisions, is given by Stansbury on Evidence, sec. 90, p. 170, as follows: \u201cWhether the existence of a particular state of affairs at one time is admissible as evidence of the same state of affairs at another time, depends altogether upon the nature of the subject matter, the length of time intervening, and the extent of the showing, if any, on the question of whether or not the condition had changed in the meantime. The question is one of the materiality or remoteness of the evidence in the particular ease.\u201d\nThis Court said in the case of Raynor v. R. R., 129 N. C., 195, 39 S. E., 821: \u201cA man may be drunk at 11 o\u2019clock in the forenoon and sober up by 3 :45 in the afternoon, or vice versa, he may be sober in the forenoon and by 3 :45 in the afternoon be drunk. Neither drunkenness nor soberness is a necessarily continuing state. Both conditions are liable to rapid and frequent fluctuations. Therefore, plaintiff\u2019s condition four hours after last seeing him could neither be evidence nor corroborative evidence as to his real condition when seen. Story v. R. R., 133 N. C., 59, 45 S. E., 349; Moore v. Insurance Co., 192 N. C., 580, 135 S. E., 456.\nEvidence tending to show the speed of defendant\u2019s truck a quarter of a mile away from the scene of the wreck was held admissible in the case of S. v. Peterson, 212 N. C., 758, 194 S. E., 498. Evidence as to the speed of plaintiff\u2019s car three or four miles from the scene of the accident was held properly excluded in Barnes v. Teer, 218 N. C., 122, 10 S. E. (2d), 614.\nWhile the defendant does not contend that the evidence adduced in the trial below was insufficient to carry the case to the jury, he does insist that he is entitled to a trial free from prejudicial error. In this we concur.\nThere are other meritorious exceptions presented on this record, but since there must be a new trial, we deem it unnecessary to discuss them.\nNew trial.", "type": "majority", "author": "Denny, J." } ], "attorneys": [ "Attorney-General McMullan and Assistant Attorneys-Qenerad Bruton, Rhodes, and Moody for the State.", "B. M. Covington for defendant." ], "corrections": "", "head_matter": "STATE v. W. J. KELLY.\n(Filed 11 December, 1946.)\n1. Automobiles \u00a7 30d\u2014\nIn a prosecution for drunken driving, evidence that defendant was found intoxicated at his place of business some 12 to 14 hours after the time of the offense charged, without evidence that the state of intoxication was a continuous one, is incompetent and its admission is prejudicial . error entitling defendant to a new trial.\n3. Criminal Law \u00a7 29f: Evidence \u00a7 26\u2014\nWhether the existence of a state of affairs at one time is competent to show the existence of the same state at another time is a question of materiality or remoteness to be determined upon the facts of each particular case in accordance with the nature of the subject matter, the length of time intervening, and a showing, if any, as to whether conditions had remained unchanged.\nAppeal by defendant from Phillips, J., at April Term, 1946, of ANSON.\nCriminal prosecution tried upon a warrant charging the defendant with the unlawful operation of a motor vehicle on the public highways while under the influence of intoxicants.\nVerdict: Guilty. Judgment: Ninety days on the roads. The defendant appeals, assigning error.\nAttorney-General McMullan and Assistant Attorneys-Qenerad Bruton, Rhodes, and Moody for the State.\nB. M. Covington for defendant." }, "file_name": "0062-01", "first_page_order": 110, "last_page_order": 112 }