defendant waived a "personal constitutional right" to confront a chemical analyst by "knowingly" failing to subpoena him
How later courts described this case
- defendant waived a "personal constitutional right" to confront a chemical analyst by "knowingly" failing to subpoena him
Written by the judges who cited it.
The opinion
OPINION ON PETITION TO REHEAR
A petition to rehear has been filed by the defendant in which three alleged errors are urged for consideration. They are:
“1. From the opinion of this Honorable Court, petitioner verily believes that the Court overlooked the fact that he demanded that Mr. Kosko be present in Court so that he could be cross-examined *270 by petitioner; it is true he was not under subpoena but your petitioner did not know until the day of the trial the State did not have him present, therefore, petitioner states that he did all that any reasonable man would do under the circumstances.
“2. In the opinion given by this Honorable Court they only cited the test (sic) given by the officers as to whether or not your petitioner was under the influence of an intoxicate, but did not seem to consider the witnesses presented by the petitioner.
“3. Your petitioner is unable to understand how this Court came to the conclusion that Mr. Kosko was not a witness against him in this cause because the jury learned from the papers submitted to them that the SM-7 breath test showed .18 which was above the allotted amount for a sober person.”
As to assignment No. 1, the defendant was represented by able counsel, and if it was deemed material for the technician to testify as to the method used in making the test, there was ample time prior to the trial to either subpoena the witness or to take his deposition. A party can not wait until the date of trial to complain of witnesses not being present.
As to assignment No. 2, we did consider the testimony of the defendant and his witnesses, and in our opinion the testimony of the defendant established beyond a reasonable doubt that he was intoxicated at the time of the accident.
Assignment No. 3 goes only to defendant’s disagreement with the Court’s interpretation of the law. Our reasons were given in the original opinion: “The office of a petition to rehear is to call the attention of the court to matters overlooked, not to those things which counsel supposes were improperly decided after full consideration.” L & N Rd. Co. v. U. S. F. & G. Co., 125 Tenn. 658, 691 , 148 S.W. 671 , 680 (1911). Cox v. McCartney, 34 Tenn.App. 235, 242-243 , 236 S.W2d 736, 739 (1950).
The petition to rehear is denied.
DYER, C. J., and CHATTIN, Mc-CANLESS, and FONES, TJ., concur.