People v. Fellows

MARKS, J. By an information filed by the district attorney of San Bernardino County appellant was charged with the crime of driving an automobile while under the influence of intoxicating liquor on Colton Avenue, a public highway of San Bernardino County, on the evening of October 18, 1933. He has appealed from the judgment pronounced upon him requiring him to serve six months in the county jail, and from the orders denying his motions for new trial and for arrest of judgment.

The defense presented was that appellant was not intoxicated and that at the time and place in question he was not driving the automobile, but that it was being driven by Mae Fellows, his wife. We have studied the record and are convinced beyond any reasonable or possible doubt that Fellows was badly intoxicated and was driving the automobile while in that condition. The evidence of intoxication is furnished by several witnesses who testified as to a very noticeable alcoholic odor on appellant’s breath; that from the time he alig-hted from his car to his incarceration, a period of more than two hours, he could not stand or walk without staggering; that his speech was thickened to such a degree that he could not articulate clearly. A physician who examined him and applied recognized tests pronounced him drunk. The evidence that he was the driver of the [340]automobile is equally conclusive. One witness saw him driving the car. Several other witnesses saw him sitting behind the steering-wheel immediately after the automobile was stopped on the highway. Another witness saw appellant and his wife change places in the automobile after it was stopped so that she then occupied the driver’s seat behind the steering-wheel with appellant sitting in the place formerly occupied by her.

Appellant complains of rulings of the trial court in „ sustaining objections to questions propounded by his counsel in cross-examining the People’s witnesses whereby they evidently sought to elicit evidence that his automobile was being driven in a cautious, prudent and orderly manner before it was stopped on the highway.

In People v. Ekstromer, 71 Cal. App. 239 [235 Pac. 69] (quoting from People v. Dingle, 56 Cal. App. 445 [205 Pac. 705]), it is said: “‘With respect to the meaning of the phrase “under the influence of intoxicating liquor”, as used in this statute, we think that we are well within the bounds of accuracy in saying that if intoxicating liquor has so far affected the nervous system, brain, or muscles of the driver of an automobile as to impair, to an appreciable degree, his ability to operate his car in the manner that an ordinarily prudent and cautious man, in the full possession of his faculties, using reasonable care, would operate or drive a similar vehicle under like conditions, then such driver is “under the influence of intoxicating liquor” within the meaning of the statute.’ . . . Section 112 of the California Vehicle Act was designed to protect the public from the menace of automobiles operated upon the public highway with inadequate or no efficient control, in a world of traffic difficult of management under normal conditions, and should be liberally construed to effect its purpose.”