Price, Sullivan and Lewis. The opinion of the court was delivered by Price, S.j.a.d.
Appellant was convicted of operating a motor vehicle while under the influence of intoxicating liquor in violation of N.J.S.A. 39:4-50.
The record before us reveals that when apprehended by police officers at 1:00 A.M. on July 6, 1962, defendant was seated "behind" the steering wheel in the driver's seat of his automobile, parked by the curb on Broadway, a public street in the City of Paterson near the tracks of the Susquehanna Railroad. The car's motor was running.
In order that it might be unqualifiedly clear that the sole issue raised by defendant for resolution on this appeal was whether the proofs established that he was guilty of operating his automobile within the purview of N.J.S.A. 39:4-50 and N.J.S.A. 39:1-1, defendant concedes that, while intoxicated, he had entered the automobile, had turned on the ignition of the car and started the motor. He challenges the legality of his conviction in the County Court on the single ground that the case was barren of any proof that, while under the influence of intoxicating liquor, he had actually driven the automobile; specifically, that there was no evidence that, while intoxicated, he had moved the car in any direction.
Defendant's aforesaid conviction followed a hearing in the municipal court at which he refrained from testifying and from presenting any affirmative evidence. On appeal to the County Court (on a trial de novo based on a transcript of the stenographic record taken in the municipal court (R.R. 3:10-10(a)), the conviction was affirmed. The instant appeal followed.
The proofs reveal that a police officer testified that on his arrival at the place where defendant's car was parked as aforesaid, defendant "was sitting in his automobile and a private citizen was standing next to him." Defendant was the only occupant of the car. The proofs contain no identification of the "private citizen" other than that the officer subsequently testified that the "private citizen" was a "public
official." The person in question was not called as a witness and his non-appearance as a witness was unexplained. Instead, over objection by defendant's counsel, the police officer testified that "the citizen advised us that Mr. Sweeney fell asleep on the railroad tracks." Following the assertion by counsel that such testimony should be stricken as "hearsay," the following occurred:
"THE COURT: That's right. Did this gentleman [defendant] hear it?
THE COURT: In your opinion was he able to comprehend?
THE WITNESS: He could hear well enough. Whether he was able to comprehend, I don't know.
THE COURT: I will admit it subject to later striking out. In other words, this ...