234 Ind. 77 | Ind. | 1955
In the trial court defendant was charged by affidavit with driving a motor vehicle on
The motion for new trial, is for the reasons: (1) That the court erred in overruling the motion to discharge the defendant on the completition of the State’s evidence. (2) The finding and decision is not sustained by sufficient evidence and (3) The finding and decision is contrary to law. The motion for new trial was overruled.
The assignment of error is that the court erred in overruling the motion for new trial.
The only question presented by the brief of appellant is whether or not there was any evidence, or proper inferences that could be drawn from the evidence, that the defendant drove his motor vehicle at the time and place alleged while he was under the influence of intoxicating liquor. If there is such evidence or inference the judgment should be affirmed; if there is no such evidence or inference the judgment should be reversed.
Since the presumptions are in favor of the finding and judgment of the trial court, and this court may not weigh the evidence, we shall consider only the evidence most favorable to the State. Todd v. State (1951), 230 Ind. 85, 87, 101 N. E. 2d 922; Carrier v. State (1949), 227 Ind. 726, 730, 89 N. E. 2d 74; Bell v. State (1954), 233 Ind. 629, 122 N. E. 2d 466, 467.
Gerald G. KnaufE, a milk-truck operator and a special deputy Sheriff, testified that he lived right across the street from the defendant. About one o’clock on the
The witness was then asked:
“Q. I will ask you whether or not, in your opinion, at the time you have testified about here, the defendant, Harold Kaley was under the influence of intoxicating liquors?
“A. I would say, Yes.”
The witness testified that it was about thirty minutes from, the first time he observed Mr. Kaley until they put him in jail. It was during that time the witness made his observations with respect to Kaley’s intoxi
Sheriff Norris’ evidence is in all respects similar to that of Special Deputy Sheriff Knauff, so far as events occurring, after his arrival on the scene is concerned. Among other things he testified, Mr. Kaley was on his own front porch, he was indignant because the Sheriff had been called, and was raving around. Mrs. Kaley asked the sheriff to take the car keys because she was afraid he would get back in the car. It was approximately a half hour after the sheriff arrived until he put defendant in the jail. He was then asked what he observed about Kaley’s actions, walking, talking or anything? The answer was: He was very belligerent, wanted to fuss with everyone, offered to whip Mr. Knauff and once when Mrs. Kaley came out of the house the night lock locked on the front door and he insisted that he would kick the door open. The witness smelled alcohol on Kaley’s breath and in his opinion Kaley was under the influence of intoxicating liquor.
Appellant contends that the burden was upon the State to prove the material averments of the charge beyond a reasonable doubt. The State does not contend to the contrary. This is a correct statement of the law governing the trial court. But on appeal, this court cannot weigh the evidence to determine whether it constitutes proof beyond a reasonable doubt; that duty rests solely with the trial judge or trial jury.
In view of the evidence noted above, we think the witness Knauff had a sufficient basis for the opinion he expressed, even if he had never smelled appellant’s breath. The breath odor came to the witness a little later and was additional evidence of intoxication. When the Sheriff took over, appellant said, “I am drunk. I will go.”
The Sheriff came upon the scene very shortly after appellant had stopped driving the car. The opinion he expressed was likewise based upon substantial facts.
The evidence was sufficient to sustain the decision.
The judgment is therefore affirmed.
Note.—Reported in 123 N. E. 2d 643.