
    CITY OF WEST PALM BEACH v. HALL.
    Circuit Court, Palm Beach County, Criminal Appeal.
    May 9, 1956.
    
      Joseph A. Peel, Jr. and Harold Gray, both of West Palm Beach, and Harold Bellman, Miami Beach, for appellant.
    Thomas L. Bailey, West Palm Beach, for appellee.
   R. O. MORROW, Circuit Judge.

This is an appeal from the municipal court of the city of West Palm Beach, wherein the appellant was found guilty of operating a motor vehicle while intoxicated.

The court notes that at the same trial the appellant was found not guilty on a charge of being intoxicated.

The evidence discloses that the appellant was not driving the car; that the car was not in motion, but was stopped beside the road; that the arresting officer found appellant not conscious and after shaking the appellant, stated that he was in a “drunken stupor.” The police officer operating the drunkometer test testified that he was in an advanced stage of intoxication.

A review of the evidence makes it difficult to understand a finding of “not guilty” on the charge of drunkenness.

With reference to the charge of driving a motor vehicle while intoxicated, the trial court stated “without the testimony of admission by him (appellant) I would grant the motion” (appellant’s motion for a directed verdict). The trial court therefore found the appellant guilty solely upon his admission.

This court finds that the few incoherent statements of the appellant were not an admission and second that the appellant was not in a condition to understand the officer’s warning as to his constitutional rights before being questioned.

The judgment of the lower court is reversed, and the cause is remanded to the municipal court for further proceedings not inconsistent herewith. Costs of appeal are taxed against the city.  