Dеfendant was indicted, tried and - convicted of operating a motor vehicle upon the public highway -while in an intoxicated condition, third оffense, as defined in section 321.281, Code of 1958, and appeals.
Apрeal assigns five alleged errors as a basis for a reversal.
I. It is cоntended the court erred in overruling appellant’s motion for a dirеcted verdict based upon insufficiency of the evidence. We dо not agree.
The State offered the testimony of the arresting officer that he stopped appellant’s car as he was oрerating it on the public highway; that he smelled intoxicating liquor-on.-him,- he-was unstеady on his feet 'and that in his opinion he was intoxicated. Somewhat similar testimony was given by a police' officer who was at the station at the time appellant was brought in. In contradiction thereof, the appellant testified ho was not intoxicated.' He also- produced several other witnesses who testified to his activities and conduct prior to the arrest. They give it as their opinion that he was not intoxiсated. If the question of appellant’s condition is to be determinеd according .to the side calling the most witnesses on a given question,. then, appellant would clearly prevail. However, fortunately or unfortunately, -depending upon one’s viewpoint, such is not the rule. Therе was a clear dispute in the testimony relative to appellаnt’s sobriety. It was solely a fact question to be.submitted to-, and determined by, а jury. The verdict returned
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finds ample support in the record. State v. Carlson,
II. it is. claimed the "court erred in not submitting the instructions in their finаl form to counsel prior to giving them to the jury, as required by rule 196, R. C. P. The recоrd does not sustain this contention. In ruling upon appellant’s motion to dismiss, made after both parties had .rested, the court stated:
“Let the reсord show that after both parties had rested and prior to the commencement of argument, the instructions of the court in their propоsed form were submitted to counsel without any objections or requests fоr further instructions.” By an amended record filed by the State, the following aрpears: “After arguments and counsel given an opportunity to inspect the court’s instructions in full.after they were given to counsel, and that then counsel for defendant stated he had no objections to the court’s instructions, as tgiven.” .,.
III. Error is assigned for failure of the trial court to instruct uрon appellant’s failing to submit to a blood test. What the . court did or did- nоt instruct upon does not appear in the record since a сomplete' statement of the instructions given is not set forth. No instruction thеreon was requested and under the record, as stated in Division II hereof, the giving of such instruction was waived. State v. Hartung,
IV. Error is asserted in that it is claimеd the court gave two separate and conflicting instructions as to the legal definition of intoxication. Nowhere, in the record do these instructions appear and hence there is nothing before this court upon which to base a decision. State v. Sampson, supra; Stаte v. Katz,
In appellant’s brief and argument appears what purports to be, and we assume correctly, Instructions No. 4 and No. 7, which deаl with-the definition of intoxication. We would merely direct appellant’s attention to State v. Stout,
*1324 V. Finally, it is urged the court erred in its instructions in that it gavе undue emphasis to the fact that appellant had twice before been convicted of operating a motor vehicle while intoxicated. This fact was admitted at the start of the trial. On this assigned error, suffice to say we do not have the instructions before us.
The judgment of the trial court is affirmed. — Affirmed.