Opinion
8 Div. 830.
June 6, 1939. Rehearing Stricken June 30, 1939.
Appeal from Law and Equity Court, Franklin County; W. H. Quillin, Judge.
Lawrence O'Reilly was convicted of driving while intoxicated, and he appeals.
Affirmed.
H. H. Hamilton, of Russessville, for appellant.
The complaint charges that the defendant "did drive a motor vehicle upon a public highway while under the influence of intoxicating liquor, contrary to law, in said county within twelve months before making this affidavit, against the peace and dignity of the State of Alabama."
The defendant demurred to the complaint, assigning as grounds (1) that it states no offense known to the law; (2) that it fails to allege that defendant at said time and place alleged was on a public highway; and (4) that for aught appearing defendant was driving on a private road of his own. The following charge was refused to defendant: "1. If the defendant could and did drive the car safely at the time and place in question, in a reasonably careful manner so as not to endanger life or property your verdict will be for the defendant."
Thos. S, Lawson, Atty. Gen., and Wm. N. McQueen, Asst. Atty. Gen., for the State.
The demurrer is without merit. The offense charged is made such by law. Gen. Acts 1919, p. 1002; Code 1923, § 3324; Gen. Acts 1927, p. 348, § 48; Ala. Code 1928, § 1397 (50). The complaint in terms alleges the offense was committed on a public highway in Franklin county. Defendant's charge 1 is not predicated upon the evidence. Edwards v. State, 205 Ala. 160, 87 So. 179. The offense is driving while under the influence of intoxicating liquor. The question is not to what extent defendant was under the influence of intoxicants. The degree of intoxication might go to the severity of punishment, but not to the question of guilt. Holley v. State, 25 Ala. App. 260, 144 So. 535.
The complaint in this case charged the defendant with the offense of driving a motor vehicle upon a public highway, in said county, while under the influence of intoxicating liquor, contrary to law.
Demurrer to the complaint was properly overruled. Holley v. State, 25 Ala. App. 260, 144 So. 535.
The trial in above court resulted in the conviction of defendant, and the jury assessed a fine against him of $150. Failing to pay said fine, and costs of the proceedings, or to confess judgment therefor, the court properly sentenced defendant to hard labor for the county, as provided by the governing statutes. Judgment of conviction was duly pronounced and entered, from which this appeal was taken.
We have examined the rulings of the court upon the admission of the testimony to which exceptions were reserved. These rulings are so clearly free of error a discussion thereof is not necessary.
The court properly held that the case presented questions of fact for the jury to determine. There was ample evidence adduced upon the trial to warrant the jury in returning its verdict, and to sustain the judgment of conviction, from which this appeal was taken.
As stated, the defendant was not entitled to the affirmative charge in his favor. The evidence was in direct conflict in its material aspects, hence the court committed no error in declining to direct the verdict.
The remaining refused charge does not state correct propositions of law. It was properly refused.
No error being apparent, the judgment of conviction, from which this appeal was taken, will stand affirmed.
Affirmed.