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KENNEDY v. STATE10/1/1973
ng odor of intoxicants on her breath but that she was not swaying, unsteady, of swaggering. He said that she was crying,
but appeared to be in complete control of her faculties. He said that immediately after he arrested the appellant, he gave her an intoximeter test which registered .22. Officer Wilson then testified that he had known the appellant for three of four years; that he had arrested her on previous occasions for public drunkenness, and had observed her when she was sober. He said that in his opinion the appellant was not drunk when he arrested her at the hospital. He said she responded immediately to all questions asked her at the time of her arrest; that he had had numerous dealings with the appellant in the past years and that there was no doubt in his mind that she comprehended the questions he asked and statements he made to her in giving the Miranda warning.
At the in-chambers hearing Officer Young testified that when he questioned the appellant she seemed to understand every question asked her and everything said to her; that she answered all questions in a manner which would indicate she know what she was talking about. He said that appellant had obviously been drinking but that she was not drunk. He said she would have been considered as driving while intoxicated had she been driving an automobile, but that she was coherent and able to walk and talk in a satisfactory manner.
Sheriff Henderson had testified in open court prior to the in-chambers hearing and his testimony was considered by the trial judge on the voluntariness of the statement made by the appellant. Sheriff Henderson said that he first went to the Newport Hospital when advised of the homicide. He said he talked to some of the witnesses including the appellant and then went out in the county where the homicide occurred. He said he later talked to the appellant at the county jail. He said that when he first talked to the appellant at the hospital, she was crying; that she had been drinking some but was not in a drunken condition. He said "she knew what she was doing." Sheriff Henderson testified that he had been sheriff of the county for 10 years and had seen the appellant drunk several times during that period. He said he believed he had only had her in the
county jail once or twice for public drunkenness, but he had seen her in the city jail on several occasions. He said he had observed the appellant when she was very "staggery" and had no control of her faculties. In comparing the previous occasions when he had observed her while drunk, he said that when he talked with her at the hospital "She knew everything, knew me, talked with me; she wasn't staggering." He said that the appellant had known him for some time and, prior to the interrogation, she kept asking him to help her; that she didn't mean to shoot Duty; that Duty begged her to shoot him but that she did not mean to do so. He said she indicated to him that the shooting was an accident and that during these statements he advised her to be quiet until she was advised of her rights, etc.
On cross-examination Sheriff Henderson testified that when he first went to the hospital,, he talked to several witnesses and that the appellant probably did come to him and start telling her story of what had happened. He said he had seen "Cookie" (the appellant) drunk on many occasions. He then testified as follows:
"Q. Was she drunk this time?
A. No; no, she wasn't what I would say a bad drunk; she had been drinking but she was not to the point of what I would call a drunken condition.
Q. It is your opinion then and you are saying then she was in an intoxicated condition that night when you saw
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