#### STATE OF NORTH CAROLINA v. LARRY EUGENE TORRENCE

No. 7419SC743

(Filed 6 November 1974)

Automobiles § 127— driving under the influence — sufficiency of evidence

Evidence in a prosecution for driving under the influence was sufficient to be submitted to the jury where it tended to show that a witness approached defendant who was leaning on the front fender of his car which was in a ditch, the car was still warm, defendant told officers that he was the driver of the car, in the opinion of the officers defendant was under the influence of intoxicants, and a breathalyzer test showed .24 percent weight of alcohol in defendant’s blood.

Appeal by defendant from Exwn, Judge, 13 May 1974 Criminal Session of Superior Court held in Rowan County.

Defendant was charged with driving a motor vehicle on a public highway while under the influence of intoxicating liquor and with public drunkenness. In district court, he pleaded not guilty but was found guilty of both charges. He appealed the driving under the influence charge to the superior court, where he pleaded not guilty. The jury returned a verdict of guilty as charged, and from judgment sentencing him to prison for four months, he appealed.

Attorney General James H. Carson, Jr., by Assistant Attorney General William B. Ray, for the State.

Archibald C. Rufty for the defendant.

BRITT, Judge.

Defendant’s only assignment of error is that the court erred in failing to grant his motion for nonsuit at the close of all the evidence.

The evidence presented by the State (defendant offering no evidence) tended to show: Around 9:00 p.m. on 27 December 1973, witness Taylor received a telephone call from his neighbor advising that a car was in a ditch near the neighbor’s house. Taylor called the sheriff and then he and the neighbor went to the car where they found defendant leaning on the front fender. The car was not damaged and was still warm; defendant stated that he was all right. Some five minutes later, Officer Dancy arrived and five minutes thereafter Officer Holcomb arrived. Defendant was weaving back and forth, had a very strong odor *557of alcohol on his breath, and could not walk without assistance. Defendant told the officers that he was the driver of the car. In the opinion of the officers, defendant was under the influence of intoxicants. Defendant was taken to the Kannapolis Police Department where he was given a breathalyzer test which disclosed .24 percent weight of alcohol in defendant’s blood.

We hold that the evidence was sufficient to withstand defendant’s motion for nonsuit and the assignment of error is overruled.

No error.

Judges Campbell and Vaughn concur.