People v. Eviston — 229 A.D. 686

Majority

p. 686

The People of the State of New York, Respondent, v. Martin Eviston, Appellant.

First Department,

June 23, 1930.

p. 687

Mitchell D. Schweitzer of counsel [Rubin & Schweitzer, attorneys], for the appellant.

Michael J. Driscoll, Deputy Assistant District Attorney, of counsel [Thomas C. T. Crain, District Attorney], for the respondent.

The evidence does not suffice to establish beyond a reasonable doubt that defendant was guilty of driving an automobile “ while in an intoxicated condition ” in violation of the Vehicle and Traffic Law, section 70, subdivision 5. (See People v. Weaver, 188 App. Div. 395 , 400/ 401.)

The judgment should be reversed, the information dismissed, fine remitted and license restored.

McAvoy and O’Malley, JJ., concur; Merrell and Pinch, JJ., dissent and vote to affirm.

Judgment reversed, the information dismissed, the fine remitted and license restored.

Cases cited

People v. Weaver 188 App. Div. 395 N.Y. App. Div. 1919-06-30 at 400 p. 687