CHARLESTON.

#### State *v.*Joe Magdich

(No. 6113)

Submitted May 8, 1928.

Decided May 15, 1928.

. 1. CRIMINAL *Law*— Where *Testimony on Fact Issue in Criminal Case Conflicts, Weight of Reasonable Inferences Deducible is for Jutry; Verdict in Qriminal Case, Based on Conflicting Evidence, Will Not be Set Aside Unless Plainly Wrong.*

Where the testimony on an issue of fact in a criminal case is conflicting, it is for the jury to determine the weight to be attached to the reasonable inferences that can be drawn from all the facts and circumstances in evidence, and their verdict will not 'be set aside by the appellate court unless plainly wrong.

(Criminal Law, 16 C. J. § 2292; 17 C. J. § 3594.)

(Note : Parenthetical references by Editors, C. J. — Cyc. -Not part of syllabi.)

Error (to Circuit Court, Marshall County.

Joe Magdich. was convicted of driving an automobile on a public street when intoxicated and under the influence of liquor, drugs, and narcotics, and he brings error.

*Affirmed.*

*Everett E. Moore,*for plaintiff in error.

*Hoiua-rd B. Lee,*Attorney General, and *B. A. Blessing,*Assistant Attorney General, for the State.

MilleR, Judge :

The defendant, Joe Magdich, was convicted of the statutory offense of driving- an automobile upon a public street in the City of Moundsville “when intoxicated and under the influence of liquor, drugs and narcotics.”

Error is assigned in the refusal of the trial court to set aside the verdict, because contrary to the law and the evidence. Homer Mack, residing at 809 First Street, testified that defendant’s companion, whom he afterwards learned was Mike Maholick, came to his door and “knocked at the door and was *586going1 to come in the house when I pushed him back and shut the door and he muttered around; ’ ’ that the man went back to the car, which was driven away; that in about ten minutes they came back, honked their horn and continued talking in a boisterous manner; that because oí the annoyance they were ■causing he called the police, who came and arrested the men. One of the policemen testified that both men were intoxicated when he arrived, and that he arrested them; that the defendant was too drunk to walk, and had to be assisted to keep him on his feet; that when he came in sight of the ear, defendant started it forward, and that he jumped on one side of the car and another officer on the other; that the car moved some- eight, ten or twelve feet before they succeeded in getting it stopped. Both officers, two- or three others present at the time of the arrest, and the jailor, all say defendant was intoxicated, and. some of them smelled intoxicating liquor or “moonshine” on him. The officer found in Maholick’s pocket a pint bottle containing a small quantity of liquor. There can the no doubt that the defendant was intoxicated, if the State’s witnesses are to be believed.

The main defense is that there is no evidence that defendant was actually driving the car while intoxicated. His testimony is that Maholiek called him up from "Wheeling and asked him to come to the railroad depot there. He went to "Wheeling, got Maholiek and brought him to Moundsville, where they started out to find a man Maholiek wanted to see, first stopping ait Mat Bryson’s on Ninth Street; they .then went to First Street, where Maholiek knocked at the wrong* door, and got into an argument with the man wlm was there; they then drove onto Second Street and back to First Street, stopping within a few feet of where they had stopped before, where they found Maholick’s friend. They both went into the house and stayed there about fifteen minutes, and when they had reentered the car and were talking about the man Maholiek had the argument with, the police came up. He denies that the car was moving at the time he was arrested, or that it had moved after he came out of the house. He admits that he drove the car at all times during the evening. He says he had nothing *to-*drink at the friend’s house, and denies having *587drunk anything at all that day. Maholick denies being intoxicated, or even drinking anything.' He says the bottle found in his overcoat pocket was placed there by a man, whom he did not know, on the train that 'day, because the other man had no overcoat. He says the automobile was not moving when he and defendant were arrested, but that the engine was running. Two' other witnesses, Mat Bryson and Pete Dor-weth, ait whose homes it is claimed the two men had been during the evening, testified thait they were not drunk, and .that neither was drinking.

We are of opinion that the jury were warranted in finding that defendant drove the car while intoxicated. If they believe that defendant was in such a state of intoxication as the State’s witnesses testify he was, they were not bound, in giving him the benefit of the doubt, to find that he got in that condition after he stopped the ear where he was arrested, even if they believed the car was not moving at the time the officers came up and arrested him. And the officers say he was 'driving, as if in an attempt to- get away. The jury were fully instructed on reasonable doubt, presumption of innocence, and told that “a reasonable doubt is one that excludes every reasonable hypothesis except that of guilt.”

State’s instruction number two is complained of. This instruction is as follows: ‘ ‘ The Court instructs the jury that you are the sole judges of the weight of testimony of any witness who has testified before you in this case, and that in ascertaining such weight, you have the right to take into consideration the credibility of such witness as disclosed from his evidence1, his manner of testifying and demeanor upon the -witness stand, and his apparent interest, if any, in the result of the case. And if you believe that any witness has testified falsely as to any material fact, you have the right to disregard all the testimony of such witness so testifying falsely, or to give to his testimony, or any part thereof, such weight only as the same in your opinion may be entitled to.”

It is said that this instruction should have qualified the words “testified falsely”, with some such word as *uñlfully, knowingly, corruptly,*or *intentionally.*In the case of *State*v. *Staley,*45 W. Va. 797, the words *knowingly*and *intention*
      *588
      *ally*'were used. As given here, this instruction bas been crit-icised in >a number of our cases. *State*v. *Green,*101 W. Va. 703; *State*v. *Lee,*103 W. Va. 631; *State*v. *Symanski,*104 W. Va. 231; and *State*v. *Mazourik,*105 W. Va. 117. But no case bas been reversed because of this> technical error. Tbe same instruction bas been approved in *State*v. *Ringer,*84 W. Va. 546; *State*v. *Lang,*88 W. Va. 685; *State*v. *Powers,*91 W. Va. 737; and *State*v. *Zink,*102 W. Va. 619. In *State v. Ringer,*tbe instruction was held bad because it did not contain tbe saving clause, *“or*give to his testimony, or any part thereof, such weight only as tbe same in your opinion may be entitled to.” In *State*v. *Symanski, supra,*it is said: ‘ ‘ The instruction is theoretically imperfect; but as conviction could not have depended on tbe belief of tbe jury that a witness bad testified falsely as to *one*material fact, we see no prejudice to defendant in tbe instruction.”

Error is assigned .in tbe giving of State’s instruction number .four, that “a defendant in a criminal case bas tbe right to testify in bis own behalf, and if be does so, you can not arbitrarily reject bis testimony, especially so where be is not contradicted either directly or indirectly by any other witness or by facts and circumstances in tbe case as made out by tbe evidence against him.” We have held that this instruction by tbe State does not constitute reversible error. *State*v. *Koski,*100 W. Va. 98; *State*v. *Symanski, supra.*

Tbe court submitted to tbe jury fifteen several instructions . offered by tbe defendant, but refused to give bis instruction number sixteen as follows: “Tbe court instructs the jury that if they find from the evidence that when tbe defendant was arrested his automobile was not in motion that there is no evidence upon which tbe jury can find the defendant guilty .of .the charge contained in tbe indictment, even though tbe jury may believe from tbe evidence that tbe defendant bad drunk intoxicating liquors on tbe day in question. ’ ’ What we have said in regard to tbe sufficiency of tbe evidence to sustain the verdict of guilty,- sufficiently answers tbe question raised by tbe refusal of tbe trial court to submit this instruction to tbe jury. Tbe judgment will be affirmed.

*Affirmed.*