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JONES v. CITY OF FOREST CITY3/29/1965
ror. In Gentry v. State, 201 Ark. 729, 147 S.W.2d 1, we said:
Appellant next complains because of the action of the trial court in giving Instruction No. 5 on behalf of the state. This instruction is a copy of 3001 of Pope's Digest on the question of self-defense. This court has repeatedly ruled that instructions which follow the wording of the statute, and are applicable to the facts in the particular case, are always proper."
It is finally contended that the court erred in its refusal to give appellant's requested Instruction No. 5
In its instruction, just referred to (75-1031.1), the court included Sub-section 3, as follows:
3. If there was at that time 0.15 percent or more by weight of alcohol in the defendant's blood, urine, breath or other bodily substance, it shall be presumed that the defendant was under the influence of intoxicating liquor."
Certainly, appellant was entitled to an instruction, which told the jury that the provision of Sub-section 3 was only a presumption, and was subject to being rebutted by proof on the part of the appellant. Appellant's tendered
instruction was very close to being correct, though it could have been better worded. In St. Louis I.M. & S. Co. v. Waters, 105 Ark. 619, this court disapproved the latter portion of an instruction defining a drunken condition. After removing that part of the instruction, the court approved the definition of drunkenness, as follows:
"For one to be in a drunken and intoxicated condition as defined by the law, he must be under the influence of intoxicating liquors to such an extent as to have loss of normal control of his bodily and mental faculties."
As previously stated, the cases were consolidated for trial, and the court told the jury that all charges were based on the same set of facts and circumstances. We are unable to say that the testimony of Smith did not influence the jury in their disposition of the charges of resisting arrest and assaulting an officer, particularly since Smith testified that the alcoholic content (determined from the urine analysis) reflected that the defendant was "drunk and disorderly." In Moore, et al v. State, 227 Ark. 544, 299 S.W.2d 838, we said:
"Where the effect of an erroneous instruction or ruling of the trial court might result in prejudice, the rule is that the judgment must be reversed on account of such ruling, unless it affirmatively appears that there was no prejudice."
That language is applicable in the case at Bar.
Accordingly, because of the errors heretofore set out, the judgment(s) is reversed, and the cause(s) remanded.
Page 1 2 3 4 Arkansas DUI Attorneys
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