Eаrly in the morning of December I, 1937, the defendant, Claude Dale, together with two' young men, was driving from Winner to Gregor)*-, South Dakota, on Highway U. S. No. 18. At a point somewhere between Colome and Dallas, South Dakоta, Dale’s car met the car of the complaining witness on a narrow bridge or culvert, the cars sideswiping one another. According to the testimony of both the defendant and the State, Dalе had been drinking, but the amount of liquor consumed and the degree of his intoxication are in dispute. At the trial the jury found the defendant guilty of operating a motor vehicle upon a public highway while under thе influence of intoxicating liquor. Defendant is here on appeal from the conviction.
Appellant at the outset in his argument contends that' no proper plea was entered upоn the minutes of the court as expressly provided for by Sec. 4782, S. D. Rev. Code of 1919, and further that there was no record of any of the minutes of the court; hence, the settled record as kept by the clerk does not disclose the entering of a plea to the information. We do1 not believe that, where the accused takes part in all the proceedings in the court as the record in this case discloses, he is now in a position to claim error. Without further reviewing the proceedings in
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this opinion as to just what took place, we are thoroughly satisfied that the case of State v. Reddington, 7 S. D. 368,
Apрellant’s first eight specifications of error in assignment No. 1 relate to the trial court’s ruling on evidence. W'e do not think that the rulings were prejudicial. In order to present those alleged as errоrs in as brief a space as possible we will state that the questions asked were to- elicit whether or not the appellant appeared to he intoxicated; also, whether he appeared to be slightly intoxicated or very much intoxicated; further, what physical acts he displayed. To the questions propounded there were answers that he seemed to be intoxicated; that he talked “funny”; that he talked like he was intoxicated, that he staggered when he got out of the car and that he talked, of course/1 thick lipped.” We are not of the opinion that the witnesses, who were present at the time in question and who- described the appearance, conduct and conversation of the appellant, should be precluded from testifying to the matters disclosed in the record and we do not believe that it was error under the record. State v. Jenkins,
*421 the objection urged in the trial court. If the appellant had made his objection wide enough to include the possession of Exhibit “A” from the time it was picked up until it was marked for identification in the court, there would have been opportunity for the state to account fori its pоssession and, if it failed to do so, then the evidence might been rejected by the trial court. We do not believe that the trial court erred in admitting Exhibit “A” under the objection interposed.
Appellant excepted to certain instructions given to the jury covéring our statute, Ch. 251, Title 5, § 63, page 317, S. D. Laws 1929, which prohibits a person from operating or attempting to operate a motor vehicle while under the influence of liquor, and which instruction is as follows: “You are instructed that under a charge of operating a motor vehicle while under the influence of liquor, it is not essential to' the existence of the offense that the driver of the automobile should be so intoxicated that he cannot safely drive a car. The expression ‘Under the influence of liquor’ covers not only all well known and easily recognized conditions and degrees of intoxication, but any abnormal or physical condition which is the result of indulging in any degree in intoxicating liquor and which tends to deprive him of that cleаrness of intellect and control of himself which he would otherwise possess.” The instruction,excepted to seems to be clear and concise and to us it does not seem prejudicial to atiy of the appellant’s substantial rights. An Iowa statute (Code 1931, § 5027) relating to the operating of a motor vehicle upon a highway uses the following language: “while in an intoxicated condition.” The Iоwa Supreme Court, in dealing with an instruction attempting to define that phrase in State v. Wheelock,
Under the heading of insufficiency of the evidence the appellant urg-es that there is no evidence to show that the
crime was
committed in Tripp County, South Dakota, or anything from which it could be so inferred. As 'we read the record, there is testimony that the crime was committed on Highway No. 18 between Winner and Gregory, three or four miles from - Colome, South Dakota. The appellant testified that he met the Shriner car between Colome and Dallas on a curve about four miles from Dallas, about a mile south and three miles east of Colome right where the new road starts to run along the railroad track. We take it that, from the testimony given, the court and jury could easily infer that the location was well within Tripp' 'County. A railroad map, statе highway map or a map of the state as used in our schools would clearly disclose such facts that the court and jury could infer that this particular location, described by the witnesses as being between Colome and Dallas, was within Tripp County. “Venue, like any other fact, may be established by proof of facts and circumstances from which it may be inferred. Any map of Wisconsin will show that a mile and a half from Viroqua on highway No. 27 is- clearly within Vernon county. See Kellar v. State,
We believe that the evidence was sufficient to bring this case under proof of venue in the information like any othеr material allegation; that it need not be established by express and positive testimony, but that it is sufficient if the circumstances and evidence tend to the conclusion in a manner satisfactory to1 the jury that the place of the crime corresponds with that set forth in the information, and as said in State v. Burmeister, 65 S. D. 600,
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The appellant cites as sustaining his contention State v. First Nat’l Bank of Clark, 3 S. D. 52,
Appellant in this same assignment contends that there is no evidence whatsoever to sustain the conviction that the appellant was under the influence of intoxicating liquor that night. As we view the evidence, there was a conflict in the evidence. The jury which heard the evidence found the apрellant guilty as charged in the information. W!e are not in a position to say that the record does not disclose sufficient evidence to sustain the conviction. It was the province of the jurоrs to say what witnesses they would believe and to pass upon the various incidents and circumstances which, as testified to, were probable or improbable. Other errors complained of have been. carefully considered and we feel that they are not prejudicial.
The order and judgment appealed from are affirmed.