{ "id": 8627255, "name": "STATE v. CLYDE DIAMOND PASCHAL", "name_abbreviation": "State v. Paschal", "decision_date": "1961-01-20", "docket_number": "", "first_page": "795", "last_page": "798", "citations": [ { "type": "official", "cite": "253 N.C. 795" } ], "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": "133 N.E. 2d 516", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "309 P. 2d 1103", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10482811 ], "opinion_index": 0, "case_paths": [ "/p2d/309/1103-01" ] }, { "cite": "75 N.W. 2d 316", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10804306 ], "weight": 2, "year": 1957, "opinion_index": 0, "case_paths": [ "/nw2d/75/0316-01" ] }, { "cite": "143 N.Y.S. 2d 362", "category": "reporters:state", "reporter": "N.Y.S.2d", "weight": 2, "year": 1956, "pin_cites": [ { "parenthetical": "1" } ], "opinion_index": 0 }, { "cite": "81 S.E. 2d 614", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "94 S.E. 2d 886", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 2102264 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/sc/230/0164-01" ] }, { "cite": "328 P. 2d 1065", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 4506930 ], "weight": 2, "year": 1956, "opinion_index": 0, "case_paths": [ "/idaho/80/0296-01" ] }, { "cite": "80 S.E. 2d 387", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "239 N.C. 453", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627305 ], "pin_cites": [ { "page": "458" } ], "opinion_index": 0, "case_paths": [ "/nc/239/0453-01" ] }, { "cite": "64 S.E. 2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "233 N.C. 390", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608863 ], "pin_cites": [ { "page": "399" } ], "opinion_index": 0, "case_paths": [ "/nc/233/0390-01" ] }, { "cite": "25 A.L.R. 2d 1407", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "352 U.S. 432", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6161761 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/352/0432-01" ] }, { "cite": "25 A.L.R. 2d 1396", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "96 L. Ed. 183", "category": "reporters:federal", "reporter": "L. Ed.", "opinion_index": 0 }, { "cite": "342 U.S. 165", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 640823 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/342/0165-01" ] }, { "cite": "15 S.E. 2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "219 N.C. 818", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626735 ], "opinion_index": 0, "case_paths": [ "/nc/219/0818-01" ] }, { "cite": "106 S.E. 2d 573", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "249 N.C. 387", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615755 ], "opinion_index": 0, "case_paths": [ "/nc/249/0387-01" ] }, { "cite": "100 S.E. 2d 489", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "247 N.C. 244", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626435 ], "opinion_index": 0, "case_paths": [ "/nc/247/0244-01" ] }, { "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" ] }, { "cite": "95 S.E. 2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "245 N.C. 165", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8606923 ], "opinion_index": 0, "case_paths": [ "/nc/245/0165-01" ] }, { "cite": "95 S.E. 2d 548", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "245 N.C. 158", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8606795 ], "opinion_index": 0, "case_paths": [ "/nc/245/0158-01" ] } ], "analysis": { "cardinality": 583, "char_count": 9650, "ocr_confidence": 0.575, "pagerank": { "raw": 1.1401558322698264e-07, "percentile": 0.5782667252028979 }, "sha256": "9c2f5f32138df13320c7b119e767c4a5f9bd0d689d9d0edec0b6d235e28a2f4c", "simhash": "1:b4099caa306d9629", "word_count": 1631 }, "last_updated": "2023-07-14T21:02:38.064481+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "PARKER, J., dissents." ], "parties": [ "STATE v. CLYDE DIAMOND PASCHAL." ], "opinions": [ { "text": "Bobbitt, J.\nDefendant does not challenge the sufficiency of the evidence to support the verdict, but assigns as prejudicial error the admission, over his objection, of the following testimony of a State\u2019s witness, the arresting officer, on direct examination, viz.: \u201cI asked Mr. Paschal on the way to the Police Station if he knew about the blood test. And he stated that he did, and I asked him if he would like to take a blood test. He stated, \u2018no,\u2019 that he had taken one before and didn\u2019t want one.\u201d The solicitor then asked: \u201cDid he take a blood test?\u201d the witness answered: \u201cNo, sir, he did not.\u201d\nDefendant did not testify, either on direct or cross-examination, as to what conversation, if any, he had with the arresting officer with reference to taking a blood test.\nThe State\u2019s evidence, which consisted solely of the testimony of the arresting officer, tended to show: The officer stopped defendant on account of the manner (described in detail) in which defendant was operating his car. Defendant, when he walked out in front of the patrol car, \u201cweaved and wobbled.\u201d His speech was \u201cslurred\u201d and the odor of alcohol was upon his breath. In defendant\u2019s car, there was a six-pack carton of Budweiser Beer, containing four full bottles and one empty bottle, and also a partially filled bottle (containing thirteen ounces) of vodka. In the officer\u2019s opinion, defendant was highly intoxicated at the time of his arrest.\nDefendant denied he was under the influence of intoxicating liquor when arrested. He told the arresting officer and testified at trial that the only alcoholic beverage he had drunk was \u201ctwo beers.\u201d A witness for defendant testified that he, not the defendant, had taken the drink from defendant\u2019s pint bottle of vodka at a service station some two hours or more prior to defendant\u2019s arrest.\nUncontradicted evidence was to the effect that defendant was operating a motor vehicle upon a public street. The crucial question was whether defendant was doing so while under the influence of intoxicating liquor.\nAssuming the blood specimen is obtained at or near the pertinent time and identified and traced until chemical analysis thereof is made, this Court has held: In a prosecution under GS 20-138, testimony of a qualified expert (1) as to the making and results of a chemical analysis of such blood specimen to determine the alcoholic content thereof, and (2) as to the effects of certain percentages of alcohol in the blood stream, is competent. S. v. Moore, 245 N.C. 158, 95 S.E. 2d 548; S. v. Henderson, 245 N.C. 165, 95 S.E. 2d 594; S. v. Willard, 241 N.C. 259, 84 S.E. 2d 899; S. v. Collins, 247 N.C. 244, 100 S.E. 2d 489. In each of these cases, the blood specimen was obtained for chemical analysis with the defendant\u2019s consent.\nIn Osborne v. Ice Co., 249 N.C. 387, 106 S.E. 2d 573, a proceeding under the Workmen\u2019s Compensation Act, the employee was the driver of one of the cars involved in a collision and died on the way to the hospital. Shortly thereafter, the Coroner procured three ounces of blood from the employee\u2019s veins and chemical analysis thereof was made. The testimony of a qualified expert as to the making and results of such analysis and as to the effects of the disclosed percentage of alcohol in the employee\u2019s blood stream was held competent and sufficient to support the Industrial Commission\u2019s finding that the employee was intoxicated when the collision occurred.\nIn S. v. Cash, 219 N.C. 818, 15 S.E. 2d 277, the defendant in a prosecution for murder pleaded insanity at the time of the homicide due to the continued use of liquor, morphine and other opiates. While in jail, specimens of his blood and urine were taken for chemical analyses to determine the presence or absence of alcohol or morphine in his system. On appeal, defendant\u2019s contention that testimony as to the results of such analyses violated his constitutional right against compulsory self-incrimination, North Carolina Constitution, Article I, Section 11, was disposed of on the ground \u201cthe record fails to disclose any compulsion on the part of the officers in obtaining specimens of the defendant\u2019s blood and urine.\u201d\nNo test of defendant\u2019s blood was made. Hence, the competency of expert testimony as to the results of a chemical analysis of a blood specimen obtained without consent, by force or otherwise, is not presented. In this connection, see Rochin v. California, 342 U.S. 165, 96 L. Ed. 183, 72 S. Ct. 205, 25 A.L.R. 2d 1396; Breithaupt v. Abram, 352 U.S. 432, 1 L. Ed. 2d 448, 77 S. Ct. 408; Annotation, \u201cRequiring submission to physical examination or test as violation of constitutional rights,\u201d 25 A.L.R. 2d 1407.\nThe established rule in this jurisdiction is that \u201c(t)he scope of the privilege against self-incrimination, in history and in principle, includes only the process of testifying by word of mouth or in writing, i.e., the process of disclosure by utterance. It has no application to such physical, evidential circumstances as may exist on the accused\u2019s body or about his person.\u201d S. v. Rogers, 233 N.C. 390, 399, 64 S.E. 2d 572, where Ervin, J., reviews prior decisions of this Court. See also S. v. Grayson, 239 N.C. 453, 458, 80 S.E. 2d 387, opinion by Parker\u00bf J., and cases cited.\nWhere this rule applies, it is held that the admission of evidence of a defendant\u2019s refusal to submit to a chemical test designed to measure the alcoholic content of his blood does not violate his constitutional right against self-incrimination. State v. Bock (Idaho 1958), 328 P. 2d 1065; S. v. Smith (S.C. 1956), 94 S.E. 2d 886; Gardner v. Commonwealth (Va. 1954), 81 S.E. 2d 614. In these cases, and others cited therein, testimony as to the defendant\u2019s refusal to submit to such test was held admissible.\nIn State v. Bock, Supra, Taylor, J., after referring to the cases where such evidence was held admissible, discusses the basis of decision in each of three cases where such evidence was held inadmissible, to wit, People v. Stratton (N.Y. 1955), 143 N.Y.S. 2d 362; State v. Severson (N.D. 1956), 75 N.W. 2d 316; Duckworth v. State (Okl. Cr. 1957), 309 P. 2d 1103. To this discussion, these additional matters are noted with reference to People v. Stratton, supra: (1) The order (of the Supreme Court, Appellate Division) was affirmed by the Court of Appeals in a memorandum decision reported in 133 N.E. 2d 516. (2) As in State v. Severson, supra, a New York statute gave the defendant an absolute right to refuse the test.\nWhether a defendant\u2019s refusal to submit to such blood test is competent as a circumstance for consideration by the jury along with all other evidence in passing upon defendant\u2019s guilt or innocence, need not be decided on this appeal.\nNo North Carolina statute relates to (1) the taking of such blood test, (2) the competency of evidence based on the results thereof, or (3) the payment of the expense of a chemical analysis or of an expert to testify as to the effects of the percentage of alcohol, if any, disclosed by such analysis. Here, defendant did not refuse to submit to a blood test. He simply answered, \u201cNo,\u201d when asked if he wanted one. Presumably, such blood test, if requested by defendant, would have been made at his expense. Indeed, the arresting officer testified on cross-examination: \u201cI don\u2019t recall (defendant) asking me about the cost of a blood test or telling him the cost of it.\u201d\nSince nothing appears to indicate that the blood test referred to by the officer, if requested, would be made otherwise than at defendant\u2019s expense, the only significance of his statement is that he did not choose to go to the expense of having such blood test made. Defendant\u2019s unwillingness to incur this expense was without probative significance in relation to his guilt or innocence. Even so, it seems apparent that the testimony as to the officer\u2019s inquiry and defendant\u2019s response was susceptible of use and probably was used to the defendant\u2019s prejudice.\nUnder the circumstances here presented, the admission of the challenged testimony was prejudicial error for which a new trial must be awarded.\nNew trial.\nPARKER, J., dissents.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Attorney General Bruton and Assistant Attorney General Moody for the State.", "E. L. Alston, Jr., for defendant, appellant." ], "corrections": "", "head_matter": "STATE v. CLYDE DIAMOND PASCHAL.\n(Filed 20 January, 1961.)\nI. Automobiles \u00a7 71: Criminal Law \u00a7 55\u2014\nTestimony to the effect that defendant, after having been taken into custody for driving a vehicle on a street while intoxicated, answered in the negative a question by the arresting officer as to whether he would like to take a blood test, held, incompetent and its admission prejudicial, since defendant\u2019s negative answer did not amount to a refusal to submit to a blood test but, it not being shown that a blood test, if requested by defendant, would have been otherwise than at defendant\u2019s expense, amounted to no more than a statement by defendant that he did not choose to go to the expense of having a blood test made.\nPaekeb, J., dissents.\nAppeal by defendant from Gambill, J., July 11, 1960, Criminal Term, of Guilford Superior Court, Greensboro Division.\nCriminal prosecution on warrant charging that defendant, on April\nII, 1959, \u201cdid unlawfully and willfully drive a vehicle upon the highway while under the influence of intoxicating liquors at the 1800 block of Merritt Drive, Greensboro, North Carolina,\u201d a violation of GS 20-138. .\nUpon trial de novo in superior court, on appeal by defendant from conviction and judgment in the Municipal-County Court of Greensboro, the jury found the defendant \u201cGuilty as Charged,\u201d and judgment was pronounced as appears in the record. Defendant excepted and appealed.\nAttorney General Bruton and Assistant Attorney General Moody for the State.\nE. L. Alston, Jr., for defendant, appellant." }, "file_name": "0795-01", "first_page_order": 835, "last_page_order": 838 }