Opinion
No. 27,095.
Filed January 9, 1939.
1. CRIMINAL LAW — Appeal — Review — Questions of Fact — Sufficiency of Evidence — Generally. — In considering the sufficiency of the evidence to support a conviction in a criminal case, Supreme Court will look only to that most favorable to the state and will not disturb the finding unless there is a total failure of proof as to some essential element of the offense. p. 54.
2. AUTOMOBILES — Offenses — Driving While Intoxicated — Sufficiency of Evidence. — Evidence that one witness saw an automobile being driven upon a public highway and heard it strike a railway crossing gate support; that another witness heard the crash and saw appellant behind the wheel while the car was still in motion on the railroad tracks; that appellant left the scene and staggered down the street, where he was arrested by two police officers, who testified that he was, in their opinion, under the influence of intoxicating liquor, held sufficient to support a conviction for operating a motor vehicle upon a public highway while under the influence of intoxicating liquor. p. 54.
From Allen Circuit Court; Harry Hilgeman, Judge.
Walter Fiedler was convicted of operating a motor vehicle upon a public highway while under the influence of intoxicating liquor, and he appealed. Affirmed.
Robert A. Buhler, for appellant.
Omer S. Jackson, Attorney General, and Thomas Longfellow, Deputy Attorney General, for the State.
Appellant was charged, tried, and convicted of driving and operating a motor vehicle upon and along Fourth Street, a public highway, in Fort Wayne, Allen County, Indiana, while under the influence of intoxicating liquor, in violation of section 1, chapter 126, Acts of 1937, section 47-417 Burns' Ann. St. Supp. 1937. By this appeal he challenges the sufficiency of the evidence and claims that there was no proof that he operated a motor vehicle on said street or that he was intoxicated.
In considering the evidence we will look only to that most favorable to the state, and the finding of guilty will not be set aside unless there is a total failure of proof as to some 1. essential element of the offense. This rule is too well known to require extended discussion or the citation of authorities.
We have read the evidence as disclosed by the record. It appears that Fourth Street in Fort Wayne is intersected by railroad tracks and that traffic gates are maintained at 2. that point. It is conceded that the street is a public highway. At the time it is claimed the offense occurred a witness was in a tower near the intersection. He observed an automobile going east on Fourth Street and heard it strike the stand by which the gate was supported. When the car came to a stop it was off the street and on the railroad tracks. Another witness heard the crash and saw the appellant behind the steering wheel while the car was in motion on the railroad property. Appellant left the scene, staggered down Fourth Street, and was arrested shortly afterwards by two police officers who testified that in their opinion he was under the influence of intoxicating liquor. This evidence is sufficient to sustain the finding of the trial court.
Judgment affirmed.