State v. Hazen

• Decision Date: 06 July 1954
• Docket Number: No. 39411,39411
• Citation: State v. Hazen, 176 Kan. 594, 272 P.2d 1117 (Kan. 1954)
• Parties: STATE v. HAZEN.
• Court: Kansas Supreme Court

Page 1117

272 P.2d 1117

176 Kan. 594

STATE v. HAZEN.

No. 39411.

Supreme Court of Kansas.

July 6, 1954.

Syllabus by the Court.

In an appeal from a conviction of the offense of driving a vehicle while under the influence of intoxicating liquor, G.S.1949, 8-530, the record is examined and it is held: The trial court did not err in any of the particulars specified.

Ray McCombs, Ness City, for appellant.

Basil C. Marhofer, County Atty., argued the cause, and Harold R. Fatzer, Atty. Gen., was with him on the briefs, for appellee.

PRICE, Justice.

This is an appeal by a defendant who was convicted of driving a vehicle within this state while under the influence of intoxicating liquor, prohibited by G.S.1949, 8-530.

At about 9 o'clock on the night of May 29, 1953, while patrolling Kansas Highway No. 4, about a mile east of Ransom, law enforcement officers came upon a car parked upon the highway, headed east, in the center of the east-bound traffic lane. It was dark and the car's lights were out. The engine was not running. Defendant was sitting in a slumped position in the driver's seat, and was in a dazed condition. A carton of beer, with one can removed, was in the car. There was an open can of beer partially full, in the front seat. Some of it had been spilled. Very shortly thereafter other officers appeared at the scene. All of them testified that defendant was intoxicated. Efforts were made to move the car to the side of the road so as to lessen the traffic hazard, and there was evidence to the effect that at the time these efforts were being made defendant himself started the engine and backed the car a few feet. He was arrested, taken to jail, and one of the officers drove the car into town.

The only evidence introduced by defendant consisted of the testimony of a witness who was at the scene with respect to who did or did not move defendant's car off of the highway. There is no contention that defendant was not intoxicated when found by the officers.

The jury found defendant guilty as charged, his motion for a new trial was overruled, and he was sentenced to pay a fine of $300 and costs.

Two of defendant's specifications of error relate to alleged erroneous instructions and to alleged error in the admissibility of evidence.

The instructions given by the court are not abstracted, and therefore this assignment of error must be disregarded. With respect to alleged erroneous rulings as to the admissibility of evidence, the claim is simply not sustained by the very sketchy and meager record before us. Such portions of the evidence as are abstracted fail to disclose any error with respect to this matter.

It is contended the court erred in overruling defendant's demurrer to the state's evidence, and his motion for discharge.

Here, again, we are handicapped on account of a very limited abstract of proceedings in the trial court. It is not clear whether defendant's contention as to the insufficiency of evidence relates to the question of his driving the car a few feet after the officers arrived at the scene, or to the fact there was no direct evidence that he, while in an intoxicated condition, drove the car to the spot on the highwy where it was found.

However, be that as it may, error is never...