
    No. 476
    PRITCHARD v. STATE
    Ohio Appeals, Second District, Franklin County
    No. 1025.
    Decided May 23, 1923
    CRIMES — (1) No erro committed when incompetent evidence is later excluded by court under proper instructions — (2) Intoxication defined — (3) Verd'ct not manifestly against weight of evidence.
    Attorneys — C. C. Clouse, for Pritchard; Charles A. Leach and Baxter Evans, for State.
   ALLREAD, J.

Epitomized Opinion

The defendant was tried in the Municipal Court of Columbus for the offense of driving an automobile while intoxicated. During the trial the statement of one of the police officers at the time of the arrest as to what he heard people say in the crowd was introduced in evidence. The evidence was admitted over objection but was finally taken from the jury by the trial court at the conclusion of all the evidence. The instructions of the court to disregard this evidence was mandatory. The trial court gave three instructions as to intoxication: first, at the request of fhe state before argument “the degree of intoxication required to be established in that degree which will cause the accused to lose control to some extent, either of his faculties or possibly his muscles”; second, at the request of the defendant before argument, “the degree of intoxication contemplated by the statute providing a penalty therefor is not established by the proof of a flushed face, or the smell of liquor upon the breath, or a disposition to talk too freely or loudly, but refers, rather, to a condition in which control has been lost either of the faculties or muscles of locomotion”; third, from the general charge, “the court instructs you gentlemen, a man is drunk in a legal sense when he is so far under the influence of intoxicating liquor that his passions are visually excited or his, judgment impaired by the liquor.” The trial resulted in a conviction and the accused was sentenced to serve a term of 30 days in jail. Defendant prosecuted error to the Court of Appeals claiming that the court erred in the admission of evidence of the police officer, that the court erred in its charge, and that the evidence was insufficient to sustain a conviction. In sustaining the judgment of the lower court, it was held:

1. Where incompetent evidence is introduced „but is later excluded and the jury has been clearly instructed to disregard such evidence, no prejudicial error was committed in its admission.

2. As intoxication is a term of general import and common knowledge, no definition by the court of this term is required. But if the court attempts to define the term and defines it correctly, no error is committed in so doing. As the definitions given in this case were proper, and if anything more favorable to the accused, no error was committed.

3. It cannot be said as a matter of law that the verdict was manifestly against the weight of the evidence, as there was ample evidence to, sustain the findings of the jury and a reviewing court will not set aside the verdict on the question of credibility of witnesses unless the verdict is clearly contrary to the weight of evidence.  