Appellate Division of the Supreme Court of New York, 1930

People v. Eviston

Appellate Division of the Supreme Court of New York · Decided June 23, 1930 · Sherman

229 A.D. 686; 242 N.Y.S. 925; 1930 N.Y. App. Div. LEXIS 10469

Counsel

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.

Opinion of the Court

Sherman, J.

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.

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