Thomas v. State4/18/1977
8 A.2d 634, 638; Wallen v. State, Okla. Cr., 338 P.2d 170, 174; State v. McDaniels, 30 Wn.2d 76, 190 P.2d 705, 713, overruled in other respects in State v. Partridge, 47 Wn.2d 640, 289 P.2d 702, 706. Since there was evidence in the record that the test revealed the presence of 0.14 percent by weight of alcohol in defendant's blood, it would have been both unfair and improper had the jury not received some instruction on the effect thereof and would have forced them to speculate upon the possible effect of this fact, which could well have been prejudicial to the defendant. It might also be observed that the possible effect of the consumption of this alcohol is most probative in determining the question of defendant's state of mind, particularly insofar as the question of his recklessness is concerned. It was not error to give such instruction.
The remaining questions involve assertions of error based upon the failure of the trial judge to give certain tendered instructions. The instruction denominated as "B" was as follows:
"YOU ARE INSTRUCTED that, if from the evidence in this case, you find that the vehicle being operated by Defendant at the time of the accident possessed a defect that deprived Defendant of control of that vehicle, you must acquit the Defendant."
The failure to give an instruction embodying this principle was error, which alone would require reversal.
There was testimony of Marvin D. Robinson, an expert mechanic, presented by defendant, that the car defendant was driving had a defect in the steering system which could have resulted in a loss of steering control so that the wheels would have cramped when steering and he would have been unable to "control the front steering at all." Although there is considerable rebuttal of this and contention that this did not come into effect or operation until after defendant originally lost control of his car, this in no manner diminishes the right to have the jury instructed upon defendant's theory of the case if there is competent evidence to sustain such theory, Blakely v. State, Wyo., 474 P.2d 127, 129; State v. Hickenbottom, 63 Wyo. 41, 178 P.2d 119, 131. Although we do not approve nor hold that this instruction is a complete or proper statement of the law because, among other things, it does not set out that the defect must be a proximate cause of the accident, it was at least sufficient to advise the court of defendant's theory and should have been given, Blakely v. State, supra.
The court refused to give offered Instruction "A", which was as follows:
"YOU ARE INSTRUCTED that, under the laws of the State of Wyoming, any person who is dead, unconscious, or is otherwise in a condition incapable of refusal is deemed not to have withdrawn his consent to have a blood alcohol sample drawn, and authorities may, therefore, lawfully draw a blood sample for blood alcohol tests from a dead or unconscious person."
The blood test of the deceased could not have been relevant in any manner in determining the guilt or innocence of this defendant. At most it would appear to be a tactic aimed at placing the prosecuting officials on trial. We do not view the brief of defendant in this particular as containing cogent argument or applicable authority, so we will not consider the same, Alcala v. State, Wyo., 487 P.2d 448, 456, certiorari denied 405 U.S. 997, 92 S.Ct. 1259, 31 L.Ed.2d 466, rehearing denied 406 U.S. 911, 92 S.Ct. 1613, 31 L.Ed.2d 823; Connor v. State, Wyo., 537 P.2d 715, 719.
It was not error to refuse to give Instruction "C" as follows:
"YOU ARE INSTRUCTED that, if, from the evidence in this case, you find that there was anot
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