General

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

229 A.D. 686·New York Supreme Court, Appellate Division·1930·NY

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Opinion

The People of the State of New York, Respondent, v. Martin Eviston, Appellant. First Department, June 23, 1930. 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. [MAJORITY — Sherman, J.] 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.