STATE v. SISSEL, 183 N.W.2d 215 (Iowa 1971)

STATE of Iowa, Appellee, v. Donald O. SISSEL, Appellant.

No. 54660.Supreme Court of Iowa.
January 19, 1971.

APPEAL FROM DECATUR DISTRICT COURT, H.J. KITTLEMAN, J.

Howard E. Strand, Lamoni, for appellant.

Richard C. Turner, Atty. Gen., Michael J. Laughlin, Asst. Atty. Gen., and Robert C. Stewart, County Atty., Leon, for appellee.

PER CURIAM.

Defendant was charged, tried and convicted in Decatur County District Court of the offense of operating a motor vehicle while under the influence of alcoholic beverage contrary to and in violation of Code section 321.281, as amended.

After the jury verdict of guilty as charged, defendant admitted he had been convicted of driving while intoxicated on two prior occasions and was sentenced to the state penitentiary for a period not to exceed three years.

Defendant has appealed and by his attorney has stated no brief and argument will be filed and in writing has requested we consider this matter on appeal on the clerk’s transcript and the trial transcript.

The record discloses testimony by a highway patrolman that he observed defendant operating a motor vehicle in the town of Davis City, Decatur County, at about 2:30 p.m. on May 13, 1970 and that after due observation it was his opinion defendant was under the influence of alcoholic beverage. Another witness stated defendant was operating a motor vehicle at the time charged. A deputy sheriff testifed that in his opinion defendant was under the influence of alcoholic beverage when he was brought to the county jail by the highway patrolman.

Defendant denied he had been operating the motor vehicle and that he was under the influence of alcoholic beverage at the time involved. Another witness testifed to the same effect.

We have carefully read and studied the record as submitted and find a fact question was developed by the evidence regarding each essential element of the offense and that the court properly submitted the matter to the jury.

The record discloses defendant was sentenced within the provisions of the statute and we find no error after study of the clerk’s transcript.

We find no reversible error. Hence the judgment of the district court is — affirmed.

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