[File No. Cr. 163.]

#### STATE OF NORTH DAKOTA, Respondent, v. JOHN HOPPERSTAD, Appellant.

(283 N. W. 785.)

Opinion filed January 28, 1939.

Rehearing denied February 18, 1939.

*66
      *Chas. A. Lyche,*far appellant. , ' *'*

*Alvin C. Strulz,*Attorney General, and *Albert*Lundberg, State’s Attorney, for respondent.

*67Burr, J.

The defendant was convicted of the crime of driving an automobile upon the public highways while under the influence of intoxicating liquors. He made a motion for a new trial, which was denied, and now appeals from the judgment and from the order denying a new trial.

There are numerous specifications of error. Those with reference to the charge to the jury have been abandoned. The remaining ones may be summarized as: Alleged error on the part of the court in permitting the state’s attorney to indorse upon the information at the time of trial the names of certain witnesses, and in making certain rulings in the admission of testimony ; that the state’s attorney made statements which were prejudicial to the defendant’s rights; and that “the verdict is contrary to law and clearly against the evidence.”

On the main case the state’s attorney called Oscar Henriksen as a witness. The defendant immediately objected on the ground that the name of this witness “is not indorsed upon the information and the state’s attorney must have known at the time of the filing of the information that he would be a witness in this case, he being the committing magistrate, presided at the preliminary hearing and the state’s attorney knew all about it.” The court examined the reason for calling him, and upon the showing made by the state’s attorney that he had not expected him to be a witness and that since the filing of the information he found it necessary to produce him, the court overruled the objection. There was no error in this. The statute (Oomp. Laws, § 10,631) permits this, and we have held repeatedly such witnesses may testify. See State v. Miller, 59 N. D. 286, 298, 229 N. W. 569, 574, and cases cited. The defendant could not be prejudiced. He knew he had this *68preliminary examination before tbe witness wbo was called, and knew wbat testimony he gave at tbe bearing’.

■ Tbe rulings on tbe introduction of evidence challenged by tbe defendant deal almost exclusively witb questions attempting to ascertain tbe intoxicated condition of the defendant at tbe time of tbe alleged crime.

Tbe deputy sheriff wbo arrested tbe defendant found him in bis car in tbe ditch on tbe public highway and was questioned as to bis condition at that time and whether immediately thereafter be offered to get a doctor for him and as to wbat side of tbe road be “would have gone bad be met an approaching car.” When tbe defendant was on tbe stand tbe state cross-examined him, asking him if be were a drinking man, whether be bad said that he got drunk two or three times a year, and whether be bad trouble witb tbe police previously because of intoxication.

There were no errors in tbe rulings made. It was proper to ascertain from tbe deputy sheriff wbat tbe defendant’s condition was at practically tbe time of the alleged crime. Tbe defendant submitted himself as a witness and in bis testimony tried to show that be was absolutely sober at tbe time be was charged witb driving, that be never admitted be bad driven tbe car after drinking, and that be was a farmer living in that neighborhood, that be bad never been arrested before except once and that was evidently because, as be said, “I took E. B. from East Grand Forks, I made a good fellow of myself.” On cross-examination be was asked if be bad ever been drunk. lie admitted be bad and was asked if it bad been very often, bow often, and whether be bad ever bad trouble witb tbe police as tbe result of intoxication. There was no objection to tbe question asking him if be “bad trouble witb tbe police at Grafton any time as result of your intoxication?” He answered, “It was so very little so it was nothing to talk about,” and it happened but once. There was no prejudicial error in these rulings.

Tbe charge that tbe state’s attorney was guilty of gross misconduct and bad made statements prejudicial to tbe defendant’s rights is based upon questions asked tbe defendant on cross-examination. On direct examination tbe defendant testified as to bis condition at tbe time of tbe arrest and tbe amount of liquor be bad purchased and drunk on that day. He admitted drinking three or four glasses of beer and stated *69he had bought a half pint of whiskey in the Ben Sell’s saloon that evening. lie was asked in regard to the price of it, presumably to ascertain as to whether he was telling the truth as to the quantity, and the defendant gave the price. The “gross misconduct” alleged consists in the state’s attorney immediately asking him, “You know what it sells for, you buy enough of it so you know the prices ?” He answered, “I know some prices yes.” This was the only question upon which any error is predicated. It is not unusual for an examiner to question in the form of a statement with a question mark after it. The court ,was not asked to strike out the answer nor to caution the jury; neither was there any objection whatever made to that particular question.

There is ample evidence to sustain the verdict. It is true the defendant denied being intoxicated at the time he was driving, and he denies the truth of some statements made by state witnesses. He lived five miles north and two miles east of Grafton. He came into Grafton about 4 P. M. of the day charged. He was sober at that time. He left in the evening about 8 o’clock. In the meantime he had several drinks of beer and he bought this bottle of whiskey. This is his own statement. Immediately he left for home, and just as he left the street of Grafton and joined the highway on the north edge of town, turning east, his car went into the north ditch. He remained sitting in his car and almost immediately one Kittleson came by. Defendant asked him to have a wrecker come out and haul him out of the ditch. Another witness, a neighbor of defendant, came there almost immediately after-wards and found him still sitting in the car and intoxicated. The road was a high, wide, dry road, and the defendant had gone into the ditch along the left side of the road. The deputy sheriff came out almost immediately. He testified the defendant was drunk then. There is testimony to show that defendant stated he drank no liquor after he started for home, and that he was intoxicated at the time he was arrested. His explanation is that while sitting in the car waiting for the wrecker he drank this whiskey and, as an explanation of the fact that no bottle was found, stated he threw away the bottle when he saw the deputy sheriff coming — he knew it was the deputy because of the big light on his cap, even when he was approaching. He admitted that there was - no one with him in the car when he was driving — that he drove it himself. His explanation of being on the left side of the road *70was that when he came to the highway north of the city street and was turning east, an approaching car with glaring headlights dazzled him and he went too far to the left. There was ample evideuce to show he was intoxicated while he was driving. The question of his condition was clearly one for the jury. The verdict is sustained by the evidence, and therefore the judgment and order are affirmed.

Nuessle, Ch. J., and Christianson, Morris, and Burke, JJ., concur.