
    State of Iowa, Appellee, v. R. H. Conklin, Appellant.
    CRIMINAL LAW: Instructions — Unnecessary Venue. An allegation of 1 the driving of an automobile “upon a public highway” while the driver was intoxicated is properly submitted to the jury by instructions which set forth the indictment and direct the jury to acquit unless, inter alia, the jury finds that the accused operated the automobile “at the place alleged.”
    CRIMINAL LAW: Instructions — Credibility of Accused. Instructions 2 are proper which direct the jurors as to their right to consider the interest of the accused when they pass upon the credibility of his testimony, especially when the same rule is elsewhere applied to all. the witnesses. (See Book of Anno., Vol. .1, See. 13890, Anno. 17 et seq.)
    
    Headnote 1: 42 C. J. p. .1337. Headiiote 2: 16 C. J. p. 1020.
    Headnote 2: 19 L. B. A. (N. S.) 803; 14 B. C. L. 735.
    
      Appeal from Humboldt District Court, — F. C. Davidson, Judge.
    December 13, 1927.
    Prosecution under an indictment .which charged the defendant with driving an automobile on the public highway of Humboldt County while he was in a state of intoxication. Upon a plea of not guilty, a trial, was had, and a verdict rendered finding the defendant guilty... Judgment was entered thereon, and the defendant appeals.
    
    Affirmed.
    
      Lovrien •& Lovrien, for appellant.
    
      J ohn Fletcher, Attorney-general, Earl F. Wisdom, Assistant Attorney-general, and John Cunningham, for appellee.
   Evans, C. J.

I. Defendant assigns two errors only. These are predicated upon Instructions Nos. 5 and 8, respectively. No error is predicated upon the evidence, nor upon rulings admitting or rejecting testimony; none of the evidence being incorporated in the record here. Instruction No.'5 was as follows:

‘ ‘ The material facts which the- State must prove beyond a reasonable doubt-are the following,- to-wit: (1) That the def endant was driving an automobile at the time and place alleged. (2) That, while driving the said automobile at the said time and place, he was intoxicated. (3) That the said place was in Humboldt County, Iowa. If the State has proven each and every one of the said facts beyond a reasonable doubt, you will find the defendant guilty. But if the State has failed to prove each and every one of said facts beyond a reasonable doubt, you should find the defendant not guilty.”

The complaint against this instruction is that it omitted a certain specification contained in the indictment. The indictment charged that the defendant ‘ ‘ did while intoxicated operate an automobile upon a public- highway in Humboldt County.” Instruction No. 5 omitted reference to a “public highway.” This omission furnishes the ground of complaint. The argument is that, if the indictment be unnecessarily specific, yet its specifications must, nevertheless, be proved.

Without debate as to the legal proposition thus put forward, it is sufficient to say that the instruction did require the State to prove that the defendant was driving an automobile “at the time and place alleged.” The “place alleged” was defined in the indictment as “a public highway in Humboldt County, Iowa.” It was further defined by Instruction No. 1 by incorporating therein that part of the indictment. It was further defined in Instruction No. 4 as follows:

“It is the contention of the State that, on the evening of February 19, 1926, the defendant was driving an automobile on a public highway about a mile west of Livermore, in Humboldt County, Iowa.”

It was not, therefore, necessary that the specification be repeated in Instruction .No. 5. Such specification was -in no manner contradicted by Instruction No. 5, but was wholly consistent therewith.

II. The defendant became a witness in his own behalf. In Instruction No. 8y2 complained of, the court instructed the jury that, in weighing the evidence of the defendant, they had a right to consider “his interest in the result of the ease, as affecting his credibility.” The abstract proposition thus stated is not challenged by appellant. His complaint is that he was “singled out” from all the other witnesses. Sufficient here to say that Instruction 11 applied to all the witnesses the same rule that had been applied to the defendant in Instruction No. 8%. The defendant was “singled out” only in the sense that he was the only defendant under prosecution, and as such, was interested in the result of the case in a sense that could apply to no other witness. The point complained of is fully ruled against the appellant in our recent case of State v. Weber, 204 Iowa 137. Neither assignment of error can be sustained.

The judgment below is, accordingly, — Affirmed.

Stevens, Faville, Kindig, and Wagner, JJ., concur.  