#### State of Iowa, Appellant, v. C. R. Lorey, Appellee.

MOTOR VEHICLES: Operation While Intoxicated. Evidence reviewed, and held clearly to present a jury question on the issue whether defendant operated a motor vehicle while intoxicated.

*Appeal from Polk District Court.*— W. G-. BoNner, Judge.

*553March 11, 1924.

The defendant was indicted for tbe crime of operating a motor vehicle while intoxicated. The court sustained the defendant’s motion for a directed verdict, and the State appeals.

*—Reversed.*

*Ben J. Gibson,*Attorney-general, *Vernon R. Seeburger,*County Attorney, and *Clarence I. Spencer,*Assistant County Attorney, for appellant.

*C. H. Miller,*for appellee.

Faville, J.

Chapter 275 of the Acts of the Thirty-eighth General Assembly provides:

> “Whoever operates a motor vehicle while in an intoxicated condition shall be guilty of a misdemeanor, and shall be punished as provided by Section 4906 of the Code.”

Appellee was charged with violation of this statute. The evidence in behalf of the State disclosed that, on or about the date charged in the indictment, a Ford car collided with a Ford coupe near a street intersection in the city of Des Moines. A policeman who heard the crash, and who was standing across the street from where the collision occurred, went immediately to the place of the collision; and he testified that at that time there were two men in the Ford car, both of whom were intoxicated. He said that appellee at that time was at the wheel of the Ford ear; that he was lying over on the wheel in a limp condition, and was so under the influence of liquor that he could not control the car, and was not able to handle himself. The officer called the patrol wagon, and took appellee to jail. -

There was abundant evidence in the record that appellee was at the time in an intoxicated condition. Appellee later admitted to witnesses that he was intoxicated at the time. On cross-examination, the officer testified that he did not see the car until the crash, and that the first he saw of appellee was when he arrived at the ear.

The motion to direct a verdict was made on the ground that the evidence failed to show that appellee “was engaged in the *554operation of said automobile. ’ ’ Tbe motion was sustained. Tbe ruling of tbe court was clearly erroneous. Tbe evidence was ample to' take to tbe jury tbe question as to wbetber or not appellee “was engaged in tbe operation of said automobile.” The witness for tbe State testified that be beard the crash of tbe collision. He went immediately across tbe street to tbe car, and found appellee in tbe car, at tbe wheel, in an intoxicated condition. It was quite impossible, under tbe evidence, for this drunken man to have gotten into tbe car at tbe wheel in tbe brief length of time that intervened between tbe time tbe witness beard tbe crash and tbe time when be arrived at tbe car. Tbe case presented all tbe essential facts for tbe determination of the guilt of appellee by the jury, and in fact, upon tbe evidence, the conclusion of guilt is quite irresistible. That a conviction of crime may rest upon circumstantial evidence alone has been declared by this and many other courts with great frequency.

We fail to find any justification in tbe record for the order sustaining appellee’s motion for a directed verdict. Tbe action of the trial court must be, and it *is,*— Reversed.

Arthur, C. J., Evans and Preston, JJ., concur.