Kaley v. State, 29225

• Decision Date: 24 January 1955
• Docket Number: No. 29225,29225
• Citation: 234 Ind. 77,123 N.E.2d 643
• Parties: Harold KALEY, Appellant, v. The STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 643

123 N.E.2d 643

234 Ind. 77

Harold KALEY, Appellant, v. The STATE of Indiana, Appellee.

No. 29225.

Supreme Court of Indiana.

Jan. 24, 1955.

Lynn O'Neill, O'Neill & O'Neill, Logansport, for appellant.

Edwin K. Steers, Atty. Gen., Lee M. LeMay, Deputy Atty. Gen., for appellee.

GILKISON, Chief Justice.

In the trial court defendant was charged by affidavit with driving a motor vehicle on a public highway in Rochester, Fulton County, Indiana, while under the influence of intoxicating liquor. He was tried by the court, found guilty, fined $25 and his driver's license was ordered suspended for a period of ninety days. From a judgment on this finding, the appeal is taken.

The motion for new trial is for the reasons: (1) That the court erred in overruling the motion to discharge the defendant on the completion of the State's evidence. (2) The finding and decision is not sustained by sufficient evidence and (3) The finding and decision is contrary to law. The motion for new trial was overruled.

The assignment of error is that the court erred in overruling the motion for new trial.

The only question presented by the brief of appellant is whether or not there was any evidence, or proper inferences that could be drawn from the evidence, that the defendant drove his motor vehicle at the time and place alleged while he was under the influence of intoxicating liquor. If there is such evidence or inference the judgment should be affirmed; if there is no such evidence or inference the judgment should be reversed.

Since the presumptions are in favor of the finding and judgment of the trial court, and this court may not weigh the evidence, we shall consider only the evidence most favorable to the State. Todd v. State, 1951, 230 Ind. 85, 87, 101 N.E.2d 922; Carrier v. State, 1949, 227 Ind. 726, 730, 89 N.E.2d 74; Bell v. State, Ind.1954, 122 N.E.2d 466, 467.

Gerald G. Knauff, a milk-truck operator and a special deputy Sheriff, testified that he lived right across the street from the defendant. About one o'clock on the morning in question--January 1, 1952, he heard quite a disturbance, got up, sat down a while, then dressed and went outside. It seemed the defendant wanted the keys to the automobile. They said he wanted to go to Michigan to get something to drink. His wife wouldn't let him have them. But he got the keys, got in the car, drove east down Fifth Street at a high speed, turned right at Main Street, went a block, turned right, went west to Clay Street, turned right and came back to the front of his house. Witness then went in his own house and called Sheriff Norris who arrived almost immediately. When Mr. Kaley came out on the street Sheriff Norris grabbed him, told him he was under arrest and took him across the street. As he was going across the street Kaley said: 'I am drunk, I will go.' Mrs. Kaley gave the car keys to Sheriff Norris and he put them in the car and ran it off the street into the garage. The Sheriff then put Mr. Kaley into the Sheriff's car and took him to the Fulton County Jail, and deputy Knauff went along with them in the car. Mr. Knauff smelled the odor of alcohol on Kaley's breath, 'He acted as any intoxicated man would,' 'He seemed to have red paint or lipstick all over his face and his hair was mussed up.' 'He seemed to be doing a lot of cursing.'

The witness was then asked:

'Q. I will ask you whether or not, in your opinion, at the time you have testified about here, the defendant, Harold Kaley was under the influence of intoxicating liquors? A. I would say, Yes.'

The witness testified that it was about thirty minutes from the first time he observed Mr. Kaley until they put him in jail. It...