{
  "id": 8625561,
  "name": "STATE v. JAMES WILLIAM FLINCHEM",
  "name_abbreviation": "State v. Flinchem",
  "decision_date": "1957-11-06",
  "docket_number": "",
  "first_page": "118",
  "last_page": "121",
  "citations": [
    {
      "type": "official",
      "cite": "247 N.C. 118"
    }
  ],
  "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": "84 S.E. 2d, 899",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "241 N.C. 259",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8607032
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/241/0259-01"
      ]
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  "last_updated": "2023-07-14T22:38:17.459804+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. JAMES WILLIAM FLINCHEM"
    ],
    "opinions": [
      {
        "text": "Winborne, C. J.:\nAmong the exceptions taken by defendant in the course of the trial in Superior Court, this Court is of opinion that the matter of exclusion of testimony of the witness Dowell to which Exception No. 8 is directed, constitutes error prejudicial to defendant, and entitles him to a new trial.\nIn this State a lay witness is competent to testify whether or not in his opinion a person was under the influence of an intoxicant on a given occasion on which the witness observed him. See S. v. Willard, 241 N.C. 259, 84 S.E. 2d, 899, and cases there cited.\nSince there is to be a new trial, it is not deemed expedient to treat other assignments of error. The matters to which they relate may not then recur.\nFor error pointed out, let there be a\nNew trial.",
        "type": "majority",
        "author": "Winborne, C. J.:"
      }
    ],
    "attorneys": [
      "Attorney General, Assistant Attorney General Love for the state.",
      "W. H. McElwee, W. L. Osteen for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE v. JAMES WILLIAM FLINCHEM\n(Filed 6 November, 1957)\nAutomobiles \u00a7 71: Criminal Law \u00a7 63\u2014\nA lay witness is competent to testify whether or not in his opinion a person was under the influence of an intoxicant on a given occasion on which the witness observed him, and in a prosecution for driving while under the influence of an intoxicant, the action of the court in sustaining an objection to testimony of defendant\u2019s witness to the effect that he had an opinion as to whether defendant on the occasion in question was under the influence of any intoxicant and that the witness thought the defendant was perfectly normal, must be held for prejudicial error.\nAppeal by defendant from Armstrong, /., at August 1957 Term, of Wilkes.\nCriminal prosecution upon bill of indictment charging that defendant \u201cdid unlawfully and willfully operate an automobile upon the public highways of Wilkes County while then and there being under the influence of intoxicating liquors or narcotic drugs, contrary to the form of the statute,\u201d etc.\nUpon the trial in Superior Court the State offered the testimony of a State Highway patrolman, Mr. Gentry, tending to show that about 11 o\u2019clock on the night in question, 19 January, 1957, he saw defendant stagger as he entered his automobile, and that he, the patrolman, followed along the public highway and, on stopping defendant, smelled on his breath the odor of alcohol \u2014 beer, in his opinion; and that in his opinion defendant was under the influence of some intoxicating liquor or narcotic drug to such an extent that his mental or physical faculties, or either of them, were materially impaired; and that he, the patrolman, told defendant \u201che was under arrest for driving under the influence,\u201d and took him to jail. And, on cross-examination, the patrolman testified that in his opinion \u201cdefendant had had some beer to drink, and that defendant told him he had had two bottles of beer.\u201d\nOn the other hand, defendant, as a witness for himself, testified that while at the time of his arrest he had drunk part of two bottles of beer, (using his language) , \u201cI was just as normal as I am right now. I was not under the influence of any intoxicant. He took me to jail * * * I told him I wanted a blood test.\u201d And on cross-examination defendant testified: \u201cI wasn\u2019t staggering when I went out to get in my car. Mr. Gentry was mistaken about that. I was walking straight.\u201d\nDefendant also introduced as his witness one Billy Tom Dowell, who testified: That he was with defendant on the occasion when he was arrested. And in the course of his testimony defendant\u2019s attorney undertook to elicit from him whether, in his opinion, defendant was under the influence of any intoxicant, and the following ensued: \u201cQ. Now, do you have an opinion satisfactory to yourself as to whether he was under the influence of some intoxicant the last time you saw him?\u201d State objects. \u201cA. As far as I could tell he was perfectly normal.\u201d\nCourt: \u201cNo, you have got to first answer whether you have an opinion or not, then you can say, do you or not, Yes or No?\u201d\nWitness: \u201cYes, I have an opinion. I think he was perfectly normal.\u201d\nCourt: \u201cNo, objection sustained.\u201d\nThe above is the subject of defendant\u2019s Exception No. 8, assignment of error No. 5.\nThere are other incidents of similar nature to which other assignments of error relate, as well as other exceptions.\nAnd the record shows that after the jury had come into open court and, in response to inquiry as to whether it had agreed upon a verdict, had stated that it found defendant \u201cGuilty of violating the State Highway Law, but not drunkenness,\u201d the court declined to accept such as the verdict, stating that it was not one of the verdicts the court had instructed the jury could return. The court directed the jury to return to jury room, calling attention to instruction given. (Exception No. 1.) The jury upon further deliberation returned a verdict of guilty as charged.\nThen the record shows that after verdict a colloquy between the court and attorney for defendant followed in respect to whether judgment would be suspended upon fine and cost. The judgment of the court was that \u201cdefendant be confined in the common jail for a term of six (6) months and assigned to do labor under the State Prison Department, as provided by law.\u201d Defendant excepted.\nAnd from judgment entered defendant appeals to Supreme Court, and assigns error.\nAttorney General, Assistant Attorney General Love for the state.\nW. H. McElwee, W. L. Osteen for defendant appellant."
  },
  "file_name": "0118-01",
  "first_page_order": 160,
  "last_page_order": 163
}