114 N.H. 682 | N.H. | 1974
Memorandum Opinion
Defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor (RSA 262-A:62 as amended) after trial by jury. Defendant’s exception to the denial of his motion at the close of the State’s case to dismiss the complaint for failure of the State to prove a prima facie case was denied and his exception was transferred by Perkins, J.
This criminal appeal is devoid of merit either as a matter of fact or as a matter of law. There was evidence that the defendant was observed in the driver’s seat of his vehicle within five minutes after a resident on Main Street in Wolfeboro, who was watching television, heard a loud crash. The vehicle was in a ditch off Main Street. It had struck and broken a telephone pole, rendering the vehicle inoperable. Police officers who arrived shortly after the accident testified
Any lingering doubt that the State presented a prima facie case at the close of its evidence becomes academic in this case. “It is unnecessary, however, to consider the situation merely as it existed at the close of the State’s evidence, for the defendant did not elect to rely solely on his exception to the denial of his motion then made but proceeded to introduce evidence in his own behalf. By so doing he took the chance of supplying deficiencies in the State’s case.” State v. Barry, 93 N.H. 10, 12, 34 A.2d 661, 662 (1943). The following testimony by the defendant on cross-examination illustrates the point of the quotation above:
“Q. My question, Mr. Allen, is that you drove your car from your home to the scene of the accident?
“A. Nobody saw me driving that car.
“Q. I am asking you now, sir, did you drive that car from your home to the scene of the accident?
“A. I told you, yes, once. I said, yes, sir.”
Additionally the reserved case indicates that the defendant stipulated “that the defendant admitted the operation of his vehicle at the time and place as alleged in the complaint.”
Exception overruled.