State v. . Hough

DenNY, J. The defendant challenges the correctness of the court’s ruling below, denying his motion for judgment as of nonsuit made at the close of the State’s evidence and renewed at the close of all the evidence. We said in S. v. Carroll, 226 N. C. 237, 37 S. E. (2) 688: “We realize the necessity for strict enforcement of the statutes enacted for the protection and safety of the public in the use of our highways, but, before the State is entitled to a conviction under G.S. 20-138, ... it must be shown beyond a reasonable doubt that the defendant was driving a motor vehicle on a public highway of this State, while under the influence of intoxicating liquor or narcotic drugs. And a person is under the influence of intoxicating liquor or narcotic drugs, within the meaning and intent of the statute, when he has drunk a sufficient quantity of intoxicating beverage or taken a sufficient amount of narcotic drugs, to cause him to lose the normal control of his bodily or mental faculties, or both, to such an extent that there is an appreciable impairment of either or both of these faculties.” In the instant case, all the evidence we have as to whether or not the defendant drove his automobile on a public highway while under the influence of an intoxicant, came from the officers who reached the scene of the wreck about thirty minutes after it occurred. One of them testified that he based his opinion as to the intoxicated condition of the defendant on the fact that he smelled something on his breath. The other testified that in his opinion the defendant was intoxicated or under the influence of something. But both witnesses testified that they did not know whether or not the defendant’s condition which they observed that night came from what he had to drink or whether it came from the injuries he sustained. If the witnesses who observed the defendant immediately after his accident, were unable to tell whether or not he was under the influence of an intoxicant or whether his condition was the result of the injuries he had just sustained, we do not see how the jury could do so. It *534 is disclosed by the testimony that the defendant was suffering at the time from painful and serious injuries sustained when his car overturned. We do not think this evidence is sufficient to raise more than a suspicion or conjecture as to whether or not the defendant at the time of his injury, was under the influence of liquor or narcotic drugs within the meaning of G.S. 20-138, and construed in S. v. Carroll, supra. S. v. Flinchem, 228 N. C. 149, 44 S. E. (2) 724; S. v. Murphy, 225 N. C. 115, 33 S. E. (2) 588 ; S. v. Boyd, 223 N. C. 79, 25 S. E. (2) 456; S. v. Todd, 222 N. C. 346, 23 S. E. (2) 47. The defendant’s motion for judgment as of nonsuit should have been allowed. Reversed.