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FANT v. STATE9/4/1973
On February 3, 1972, James Fant, appellant herein, entered a plea of guilty to the charge of grand larceny and was given a ten year sentence by the Miller County Circuit Court. The court suspended the sentence conditioned upon good behavior and "leaving alcohol alone", making the following pertinent remarks at the time.
"Your problem apparently is drinking, and then you don't leave other people's stuff alone. * * * A man with a wife and six children, and a woman - the mother of those children, who has had cancer, and then, times
as hard as they are around your house - it has to be. * * * And you don't have any money in that dollar at all to buy any kind of hooch. When you take one drop of anything, you are taking a piece of bread out one of those kid's mouth, and they are going to have to live on wind pudding. If they do, you are not going to be here to see it. * * * Let me tell you one other thing. I am going against the recommendation of the law enforcement officials by giving you a suspended sentence. I may make a mistake in your case one time. I don't plan on making it twice."
The matter of Fant's refraining from the use of alcohol was mentioned forcefully several times and appellant apparently fully understood, stating, "I can leave alcohol alone. I guarantee that I can." Subsequently, on July 26, appellant was arrested in Texas by Officer Dale Hampton of The Texas Highway Patrol and charged with driving while intoxicated, following an automobile accident. On August 31, a hearing was conducted by the Miller County Circuit Court as a matter of determining whether the suspended sentence given Fant should be revoked. Officer Hampton testified that following the accident, he administered a breathalyzer test, and after stating his qualifications for giving the test, stated that Fant checked 0.18 which, under Texas law, established that he was under the influence of alcohol.
The officer also said:
"He was definitely intoxicated. He acted intoxicated; he was unsteady on his feet; and in my opinion, he was in an intoxicated condition.
BY THE COURT: Did you smell any intoxicant on him?
THE WITNESS: Yes, sir, I could smell intoxicants on his breath."
On cross-examination, Hampton testified that Fant told him that he had had "one beer and one drink of whiskey." Appellant testified that a friend gave him a drink of whiskey, stating to him that "just one drink won't hurt you" and that he had also had "two beers"; that he had "chunked the beer out - the last can out" about five minutes before the accident occurred. At the conclusion of the hearing, the court revoked the suspended sentence, stating:
"This is the third occasion that you have been brought back in here for a revocation, and because of your children and your wife, I have given you two additional chances. You have been in trouble before, and I told you after you drank; that for you not to take one drop of alcohol, didn't I? * * * And after the last petition, and there was evidence that you had been drinking, I told you I would give you one other chance, didn't I?
THE WITNESS: Yes, sir.
THE COURT: And then you go out and get liquor and beer when you know what it does to your system. Alcohol to your system is just exactly like strychnine is to other people.
Therefore, you are hereby sentenced to the Arkansas Department of Corrections for ten years, and the clerk will put on his commitment that there were three petitions for revocation; that you were given two additional chances, but the third chance after a suspension, it was revoked, * * *."
On this appeal from the revocation, two points a
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