On cross examination, this witness admitted he did not observe the defendant after the accident other than in his unconscious condition, but that he was satisfied he was drunk when found in the car. The State called as its next witness Kyle Culbertson. But his Attorney advised him not to answer any questions relative to the accident on constitutional grounds. The record shows he had been charged with driving while intoxicated on the occasion of the accident on the morning of April 12, , and convicted of that offense in the City Court of Kingsport and his case was at the time pending on appeal in the Law Court at Kingsport.
Defendant's Counsel insisted on the right to question Culbertson but the trial judge overruled Counsel.
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The defendant testified he was twenty-one years of age. He was only eighteen years of age at the time he was convicted of the burglaries in He admitted he had paid a fine for reckless driving in May He vigorously denied he was intoxicated on the morning of April 12, He did not appear because of his injuries in the accident and the bond was forfeited. He stated he had been involved in two "incidents" in the State of Virginia. He further testified he had regular employment. That he worked ten to twelve hours a day six and seven days a week. That he married in October and that his wife was pregnant.
He testified he worked over twelve hours on April 11, That night he and his wife had gone to his mother's home. He left his wife there about ten thirty o'clock and drove down town and bought a carton of beer. He and Culbertson each drank three or four beers. He drove Culbertson to the home of Bobby Phillips. He went to sleep while they were talking about three o'clock in the morning. He did not remember what had happened after he went to sleep in the car until he awakened the following afternoon in the hospital. He again denied he was intoxicated but had had a severe blow to his head in the accident.
Joe Crawford testified he had been with the defendant until one o'clock on the morning of the accident. He drank only one or two beers while he was with him. Bobby Phillips testified defendant and Culbertson came to his home about three o'clock on the morning of the accident. He went out to the defendant's car.
Sullivan County, Tennessee Public Records Directory
Defendant went to sleep. He stated defendant appeared to be sober. He admitted there was some beer in the car. That he and Culbertson drank one beer each and when Culbertson left he gave him two cans of beer. Defendant's wife, Wanda, testified she and the defendant were happily married. She was pregnant and expecting a baby the following November. She further stated defendant was regularly employed and worked ten to twelve hours a day. She stated she was confident the defendant could continue to be a good husband and make a good and useful citizen if his parole was not revoked.
Stallard testified defendant and his wife lived in an apartment rented to them by her. She said they were good tenants and had lived quietly. That defendant worked long hours most every day. She was of the opinion defendant's parole should not be revoked. Betty Flanary, a neighbor to the defendant, testified she had known him most of his life.
That he was a steady worker and enjoyed a good reputation. She recommended to the Court his suspended sentence not be revoked. Counsel stated to the Court there were present other witnesses who would testify to the good character and reputation of the defendant.
From the foregoing testimony, the trial judge found "the proof showed that the defendant was convicted of public drunkenness in November and forfeited his bond for public drunkenness in April ; and, also, two matters in the State of Virginia. Plaintiff-in-error has appealed and assigned three assignments of error. The first assignment is that the evidence preponderates against the judgment of the trial court revoking defendant's suspended sentence.
In support of this assignment, defendant insists the trial judge abused his discretion in ordering the revocation of defendant's suspended sentence. It is argued defendant had been on probation for two years and four months at the time of the accident which brought about the revocation proceeding. That on the occasion of the accident he had consumed only three or four beers and had gone to sleep in his car.
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Such conduct was only a minor breach of the conditions imposed upon him by the suspended sentence or probation. It is further argued this Court should hold "that only a clear departure from approved standards of social conduct will be sufficient to deprive a probationer of his right to try to adjust and live in this complex society of the 's; and this Honorable Court should hold that when a young man has served more than two-thirds of his time on probation satisfactorily and can present good evidence of his strong efforts toward full rehabilitation, that an ill-advised consumption of a few beers will not deprive him of his place in society.
The foregoing argument overlooks the fact defendant admitted he had paid a fine for reckless driving in May and had been convicted of public drunkenness in November He also admitted he had been involved in two "incidents" in Virginia. Further the witness, Bralley, testified defendant admitted to him he was drunk on the occasion of the accident. Although he vigorously denied he was drunk he forfeited his bond to appear on this charge. If he was physically unable to appear for the trial, he could have had the matter continued.
He made no effort to do so. The evidence further shows there were six cans of beer found in the car after the accident.
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The credibility of the witnesses was for the determination of the trial judge. He saw and heard the witnesses testify.
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We have only before us a meager narrative of the testimony. Under such circumstances, the trial judge was in much better position than we are to judge the weight and value of the testimony. The evidence necessary to order a revocation of a suspended sentence does not require the quantum of proof necessary to convict one of a crime in the first instance. Thompson v. State, Tenn. In the case of Hooper v. The general rule in hearings of this nature is stated in 5 Wharton's Criminal Law and Procedure, Anderson Edition :. Nor do we think it can be successfully argued his judgment under the facts was an arbitrary one.
As said in the case of Finley v. Defendant's second assignment is: "The trial judge erred in allowing the Police Officer to swear that the defendant was drunk when said officer had no factual observations or basis for such a conclusion. We think this assignment of error is without merit and overrule it. The rule in this State in criminal cases is that a witness may testify a person was drunk without giving the facts or circumstances upon which the statements are based. Toggle navigation. Search How it Works About Us.
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Sullivan County, Tennessee Records
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