On appeal from the Municipal Court of the City of Atlantic City.
[74 NJSuper Page 295] Defendant appealed his conviction of certain violations of the Motor Vehicle Act, and a trial de novo was held thereon before this court on January 4, 1962. At its conclusion defense counsel requested and was granted an opportunity to submit a memorandum which has since been received. The sections of the act alleged to
have been violated are N.J.S.A. 39:4-50, 39:3-10, 39:3-40 and 39:3-29.
Defendant admits that at the time of the alleged offenses he did not possess a driver's license, and that the driver's license previously issued to him had been revoked and had not been restored. Also that the driver's license was not exhibited. The foregoing are violations under sections N.J.S.A. 39:3-10, 39:3-40 and 39:3-29 respectively.
Defendant did not testify at the trial nor did he offer any defense. However, defendant argues that it was not established beyond a reasonable doubt by credible testimony that he was operating the motor vehicle on the occasion recited in the charges and that in any event he could not be guilty of N.J.S.A. 39:3-10 and N.J.S.A. 39:3-40 because they arise "out of a common deficiency." He does not offer any specific argument as to N.J.S.A. 39:3-29, but it is to be presumed that the same logic is intended.
As to N.J.S.A. 39:4-50, which is a charge of operating a motor vehicle while under the influence of intoxicating liquor, defendant not only denies that it was established by credible testimony that he was operating the motor vehicle, but also argues that it was not established that he was under the influence of intoxicating liquor as such offense has been defined by case law, and cites State v. Rodger , 91 N.J.L. 212 (E. & A. 1917); State v. Ash , 21 N.J. Super. 469 (App. Div. 1952); State v. Glynn , 20 N.J. Super. 20 (App. Div. 1952); State v. Emery , 27 N.J. 348, 355 (1958); State v. Miller , 64 N.J. Super. 262 (App. Div. 1960).
It is important to consider initially whether there is credible testimony to establish beyond a reasonable doubt that defendant was operating the motor vehicle at the time stated, because if this is not established, to that extent defendant must be acquitted of all the charges made.
There is ample testimony to establish this fact by both direct and circumstantial evidence, and I find that this has been done clearly and convincingly beyond a reasonable doubt.
Ronald Sanders, a passenger in the automobile which defendant operated on this occasion, testified that he met defendant at Mrs. Fuller's bar where each of them consumed alcoholic beverages; that defendant rode with him in his boss's pick-up truck to the home of Ruth Stewart, arriving there about 2 A.M.; that he, Sanders, remained in the truck while defendant entered the premises; that defendant then came out with the keys to John Tinsley's car, whereupon Sanders left the truck at his home and rode with defendant in the Tinsley car; that they returned to Mrs. Fuller's bar, arriving at about 3 A.M.; that he, Sanders, did not enter the bar on that occasion because he suspected that his wife was inside, but that defendant entered and remained for what he termed a "good while" during which Sanders fell asleep. Defendant came out and again drove Tinsley's car while Sanders remained as a passenger. He testified that defendant wasn't drunk but had been drinking; that he was "going fast" and he told him to slow down, but that defendant said he had everything under control; that defendant had stopped for a red light at Main Street and Delilah Road in Pleasantville; that they went over an overpass, went around a curve pretty fast, and the car started to sway and ultimately hit a pole. When Sanders was questioned by Officer Braunstein he stated that he did not know who was driving because he was asleep, but on cross-examination at the trial he stated he was positive that defendant was driving the car; that he had not seen defendant come out of the bar, as he was asleep, but that he saw him driving when they passed the Red Top Bar on Delilah Road, whereupon he told him to slow down. He said that at the scene defendant claimed that John Tinsley was driving but he (Tinsley) wasn't there.
Mrs. Shirley Sanders was in the Fullers' bar when defendant entered at about 3:00 or 3:30 in the morning of April 28, and he bought her a drink as well as one for himself. She
testified that he acted "simple like" and that he had been drinking; that she was unable to learn from him the whereabouts of her husband, although he was outside the premises in Tinsley's car. She left the bar around 4 o'clock and defendant remained.
Mrs. Stewart testified that defendant came to her home around 1 A.M.; that he had been drinking; that he came to get John Tinsley's car keys; that Tinsley was drunk and asleep; that defendant tried to awaken him, and when he was unable to do so, picked up his jacket and took the keys.
John Tinsley testified that he visited defendant in jail on April 29 and talked with him; that defendant told him that he had an accident with his car and that he would see that he (Tinsley) got another car or he would get it fixed; and that defendant had asked him to say that he (Tinsley) was driving the car, and that defendant would take care of the bill.
All of this testimony, woven together, establishes beyond a reasonable doubt that defendant was operating the automobile during the morning hours of April 28, and particularly on the occasion when it struck the pole which brought the investigating officers to the scene. This testimony is uncontroverted ...