Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
The magistrate of the Municipal Court of the Town of Hackettstown at a trial on August 18, 1954 resolved that the defendant was guilty of having operated a motor vehicle on August 1, 1954 while under the influence of intoxicating liquor in violation of N.J.S.A. 39:4-50. At an appellate trial de novo the judge of the Warren County Court reached the same conclusion. The defendant having previously committed a like offense, he was necessarily subjected to the statutory penalty of imprisonment.
The judgment of the County Court brought here for appellate review (State v. Hunter , 12 N.J. Super. 128 (App. Div. 1951)) is said by the defendant to have been unwarranted because the evidence adduced by the State failed to establish the truth of the accusation beyond a reasonable doubt (State v. McCarthy , 30 N.J. Super. 6 (App. Div. 1954)), and that the conviction of the defendant was contrary to the weight of the evidence.
The scope of our appellate consideration of the evidence is defined in State v. Rowe , 116 N.J.L. 48, 57 (Sup. Ct. 1935), affirmed 122 N.J.L. 466 (E. & A. 1939); State v.
In general, the present case is to be enrolled in that constantly increasing company of such cases in which the accused always modestly acknowledges that he "had only two beers," and explains that his demonstrations of intoxication must have been occasioned by the anti-histamine, narcotic, or sedative tablets or capsules which had been consumed in obedience to the directions of a physician. Mysterious, indeed, seem to be the averred reactions to the various drugs mentioned in these cases when any one of them is intermixed with the customarily acknowledged intake of two beers.
In this instance the medication was said to be an antihistamine known as Co-pyrinal, which had been prescribed to alleviate the defendant's allergy to sumac poisoning. The infusion is said to have caused the defendant to be so contentious and belligerent upon his departure from the tavern and his apprehension by the police, as courageously to boast that "there was no officer in Hackettstown big enough to take him out" of his car. The dutiful police officer to whom the pretentious proclamation was addressed testified that the defendant delivered it with a voice "fluent" (sic) with the odor of alcohol.
Strangely, too, it did not occur to the defendant to mention the medication either to the policemen or to the physician who examined him.
In the circumstances it seems probable that his memory may have been likewise faulty in calculating the number and the percentage of the alcoholic potency of the drinks he actually consumed. At his examination by Dr. Miller he subjectively explained that he had been treated for "stomach trouble, family troubles and nerves," which symptomatology he admitted when in a more rational state of mind at the trial had been a misrepresentation.
There was testimony that the defendant was belligerent rather than submissive; loquacious, not taciturn; excited,
instead of lethargic; his enunciation unnatural; his eyes inflamed; his mouth was not dry but to the contrary an excessive quantity of saliva was exuding from it; his breath carried a noticeable odor of alcohol; his muscular powers of locomotion were temporarily denaturalized. Were those conditions the effects of the medicinal sedative, if such was taken, or of the consumption of alcohol, or perchance of both? Assuredly this was a ...