
    Gaughf v. City of Jackson, Mississippi
    No. 42124
    February 5, 1962
    137 So. 2d 190
    
      B. Galloway Austin, Earl Keyes, Jackson, for appellant.
    
      
      J. A. Travis, Jr., Jackson, for appellee.
   McGehee, C. J.

The appellant, Laither D. Gaughf, Jr., was prosecuted and convicted in the City Police Court of Jackson, Mississippi, of driving and operating an automobile while under the influence of intoxicating liquors. He appealed from this conviction to the County Court of the First Judicial District of Hinds County, Mississippi, where a trial de novo was bad and the jury returned a verdict of “guilty as charged.” The appellant was thereupon sentenced to thirty days in the county jail and to pay a fine of $100. Prom this conviction, be prosecuted an appeal to the Circuit Court of Hinds County, where bis conviction was affirmed. It is from the affirmance of the case by the circuit court that the appellant prosecutes this appeal here.

In bis order granting the appeal to this Court, the circuit judge, pointed out that under Section 1617, Miss. Code of 1942, Recompiled, the only question that would be involved on this appeal is the constitutional question as to whether or not it would be competent and proper to administer the intoximeter test to the appellant to determine whether or not he was driving his automobile “while under the influence of intoxicating liquors”, and to allow the witnesses for the prosecution to testify concerning the results of the said intoximeter test.

The appellant was arrested on November 30, 1960, about 12:30 in the morning near the Lion Oil Service Station on the McDowell and Terry Roads in the City of Jackson for driving “while under the influence of intoxicating liquors.” The proof showed that the attention of the officers was first attracted to the appellant’s automobile by the noise of the muffler, and they thereupon “noticed him straddling the yellow line on up in the middle of McDowell Road and coming-back toward the curb line; that they noticed that he was crossing the center line of the road to and fro;” and they followed him eight or ten blocks and then arrested him on the said charge. One of the officers testified that the appellant “was unsteady on his feet”; that he “talked with a thick tongue”; and that “he did not talk plain.”

The prosecution introduced as a witness Dr. Joseph B. Price, whose qualifications were well-established by the proof, and neither the testimony as to the fact of the appellant having taken the intoximeter test, which was freely and voluntarily taken, nor the testimony of Dr. Price as to the results of the test, was objected to by appellant on the ground that he was being required to give testimony against himself, nor on any other ground. Since this testimony was not objected to, we do not deem it necessary to decide the question of whether or not the giving of an intoximeter test would be admissible, if objected to; and we think that the testimony as to the state of intoxication of appellant while driving on this occasion, taken as a whole, amply supports the verdict of conviction, and that the judgment appealed from must therefore be affirmed.

Affirmed.

Kyle, Ethridge, Gillespie and Jones, JJ., concur.  