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JONES v. CITY OF FOREST CITY3/29/1965
e booking room. From the record on cross-examination:
"Q. This specimen you took, I understand you left it in a room?
A. Yes, sir.
Q. Who was in the room when you left it?
A. Nobody.
Q. Can you swear that the specimen this technician examined is the same specimen you allegedly took from the defendant?
A. I say I left the specimen he gave in the little room with the cap on it,
Q. You don't know whether the technician got that one specific specimen or not?
A. I did not see him get that one, no."
The record does not reflect who called Smith to come to the jail. Officer Jones stated that "somebody" called the chemist, and that he (Officer Jones) did not see Smith when he arrived. In other words, the officer did not turn the specimen over to Smith - or to anyone else. Smith testified that he was called to the Police Station in the "early
morning" of July 19 to run a urinalysis; that he found a specimen with a name on it in the bathroom of the Police Station, and he made an analysis of the urine, and thereafter prepared his report. Smith never did say who called him to come down to the jail. From the evidence:
"Q. Mr. Smith, even though the bottle was labeled, you can't swear that that specimen was taken from this defendant, can you?
A. No.
Q. You don't know where it came from?
A. No.
Q. When you walked in there the bottle was sitting there?
A. Yes.
Q. That is all you know?
A. Yes."
There is no testimony that the bottle was sealed, and, of course, there was no "hand to hand" or direct transmittal of the specimen to Smith. The bottle containing the specimen was apparently not retained, and, as shown by the quoted testimony, no one could definitely testify that the specimen examined by Smith was the specimen taken from appellant. To use the language of Chief Justice Kenison, "However likely it may be that they are one and the same, the state has failed to prove it."
There is yet another reason why the evidence of Smith was inadmissible. Ark. Stat. Ann. 75-1031.1 (Supp. 1963) deals with presumptions arising from the chemical analysis of a defendant's blood, urine, breath, or other bodily substance. Sub-section (C) provides, "The chemical analysis referred to in the above paragraphs shall be made by a method approved by the Director of the Arkansas State Board of Health and/or the Director of Arkansas State Police." There is nothing in this record to show that the chemical analysis made by Smith was carried out by a
method approved by either of these officials; according to his testimony, the test was run in conformity with tests given by the Forrest City Police Department, but there is likewise no evidence that this method had been approved by either of the state officials referred to. In its brief, the state asserts, "This is no error as the record does not reflect any testimony pertaining to this issue." We do not agree, for the burden was upon the state to establish that the test given had been approved by the Director of Health or the Director of Police. A similar requirement is prescribed in Nebraska, and in Otte v. State, 108 N.W.2d 737, the Supreme Court held that, inter alia, it was error to admit testimony as to a blood analysis where there was no evidence that the analysis had been made according to a method approved by the Department of Health.
Appellant asserts that the court erred in giving an oral instruction, requested by the city, such instruction quoting pertinent parts of Section 75-1031.1. This was no er
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