State v. . Flinchem

No. 226: Operating Motor Vehicle While UNDER Influence OE INTOXICATING LlQTTOR. Devin, J. A careful examination of the testimony offered by the State in support of the charge of driving an automobile while under the influence of intoxicating liquor, in violation of G. S., 20-138, leads us to the conclusion that it lacks sufficient probative value to warrant submission to the jury, and that defendant’s motion for judgment of nonsuit as to this charge should have been allowed. The testimony of two witnesses to the effect that from the detection of some “foreign” odor of an intoxicant from the mouth of a man whom they had not seen before, and who had been knocked unconscious by a blow on the head, they were of opinion he was under the influence of intoxicating liquor, standing alone, was insufficient to constitute substantial evidence that the man, previously, while driving an automobile on the highway, had been under the influence of intoxicants to the extent held necessary in S. v. Carroll, 226 N. C., 237, 37 S. E. (2d), 688, to *151 constitute violation of tbe statute. We note also that another State’s witness, with apparently equal opportunity, detected no odor of intoxicant from the unconscious defendant. No. 227: Reckless DeiviNG-. Upon the evidence offered pertaining to the charge of reckless driving of an automobile, in violation of Gf. S., 20-140, we think defendant’s motion for judgment of nonsuit was properly overruled. However, we think defendant’s exception to the court’s instructions to the jury in this case must be sustained, entitling the defendant to another trial. The court in charging the jury as to this case only read the statute and then instructed the jury, “If you are satisfied beyond a reasonable doubt that defendant is guilty of reckless driving you would convict him of that; if not, you would acquit him of that.” This charge fails to comply with the requirement of the statute, G-. S., 1-180, that the trial judge “shall state in a plain and correct manner the evidence given in the case and declare and explain the law arising thereon.” No explanation of the law was attempted nor was any guide given the jury in the application of the law to the facts as they should find them to be. S. v. Fulford, 124 N. C., 798, 32 S. E., 377; Williams v. Coach Co., 197 N. C., 12, 147 S. E., 435; McNeill v. McNeill, 223 N. C., 178, 25 S. E. (2d), 615. In No. 226: Reversed. In No. 227 : New trial.