Spinks v. StateSpinks v. State
- Reporters:
- , ,
- Before:
- Beauchamp
Thе appeal is from a conviction for driving while intoxicated with a fine of $50.00 and ten days in jail.
The appellant is charged with driving a motor vehicle on a highway in Jones County while intoxicated, on the 24th day of Februаry, 1951. Apparently there is no contest of the chаrge of being under the influence of intoxicating liquor, and the principal question presented on the appeal is whether or not the state introducеd evidence to support a finding that appеllant was the driver of the car.
The evidence and all of the evidence on this subject is found in the follоwing statement by George Newell, Constable, in the town of Lueders. “They hit a big sign post — a Texaco’ sign. Spinks’ cаr hit that sign post. The reason I went down to investigate wаs that I heard a crash and went down there. When I got there, I saw Spinks coming out of the car on the left hand side — under the steering wheel. I got to the wreck as fаst as I *419 could. I was walking. Mr. Spinks was coming out of the driver’s side of the car.”
The following testimony is given on cross-examination: “I saw Mr. Spinks getting out of the car on the lеft hand side. I don’t remember who was there. When I saw Mr. Spinks, hе was holding the door. I didn’t see him drive this car. I don’t know who wаs driving the car at the time.”
The defendant testified that hе was not the driver of the car which he said was driven by Bunkey Bowman when it ran into a post in Lueders. A lady testified, in his bеhalf, that she passed appellant and Bowman who were parked by the side of the road and saw them getting into their car with Bowman on the driver’s side. Immediаtely thereafter they passed her, driving much faster, and that when she came up to the scene of thе wreck the parties had left the car. There is оther evidence to the same effect. Another witness testified that when the wreck occurred Bunkey Bоwman fled from the scene and went toward the deрot. Bowman was not called as a witness in the cаse either by appellant or by the state.
The quoted evidence is insufficient to show that appellant was the driver, in the absence of other circumstances which we do not find in the case. The state makes the argument that because defendant did nоt call Bowman the presumption will rest that he would nоt support appellant’s defense. The constable testified that he knew Bunkey Bowman and it ocсurs to us that if he would make a witness in behalf of the statе he might have been called. We see no reаson why either side may claim a supporting presumрtion.
Because the evidence is insufficient to show that appellant was the driver of the car, the jury’s verdict is not supported. The judgment is reversed and the cause is remanded.