Roy Ivan Buffalow, plaintiff in error, hereinafter referred to as defendant, wás charged by information in the county court of Beaver County with the offense of driving a motor vehicle on a public highway while under the influence of intoxicating liquor. The case was tried to a jury, which found the defendant guilty as charged, but being unable to agree upon the punishment to be assessed left that to the court, who fixed punishment at thirty days confinement in the county jail, and a fine of $100 and costs.
The evidence discloses that the defendant operated a farm west of Forgan, and about 7:00 P.M. of an October day Highway Patrolman John Leech was driving west on U.S. Highway 64 about one mile west of Forgan when he met the defendant driving a car east toward Forgan, The car seemed to be weaving in its lane of traffic, and when opposite the officer, swerved so that Mr. Leech had to drive out partially onto the shoulder of the road. He turned his car around, overtook the defendant, who was driving slowly, and had him get out of his car. Witness detected the odor of alcohol about defendant, observed an impediment of speech, and concluded that he was under the influence of alcohol, and took him to the county jail at Beaver. A man companion of the defendant who also smelled of alcohol was “turned loose” as the officer put it. The officer did not drive defendant’s car or have information that the steering apparatus was defective, or have knowledge that defendant had a natural impediment of speech, he admitted on cross-examination. He also admitted that there was a high wind at the time of observing defendant’s driving.
The jailer, Mac Walter, testified that when officer Leech arrived at the jail with the defendant, Mr. Buffalow wanted a doctor and he tried to call Dr. McGrew, who was out of town, and he did not try to get another doctor, because to his knowledge such would have been useless, as they would not come to the jail. Witness smelled alcohol about the person of the defendant, and noticed that he had a tendency to fall backward in going up some steep steps to the jail, on the second floor. He concluded that defendant was under the influence of intoxicants. On cross-examination with reference to the stairs being difficult to climb, he said that perhaps heavy people had difficulty in climbing them, but if not intoxicated most people would not have any trouble.
The defendant offered the evidence of a number of high school age boys who had been working on his farm the day of the arrest. They were to meet defendant in Forgan for their pay. They denied having any knowledge of defendant having drunk intoxicants that day, and testified that prior to leaving the field before sun-down he had appeared normal. Wayne Mayo, one of the workers, testified that the defendant does not talk too distinctly; that he “sort of mumbles”.
*1105The defendant testified, and said that on the day of his arrest he had been binding feed on his farm, and had a number of young men of Forgan helping him; that about 6 P.M. he left for Forgan to get money to pay the workers, who were to come on to town and meet him. He denied that he had been drinking or was intoxicated at the time the patrolman stopped and arrested him. He claimed that his steering gear was defective and that after getting out of jail it cost him $64 to get it' fixed. He claimed that he had been down with rheumatic fever for about two years and. was more or less crippled. He said that when the red light was thrown on him and the patrolman sounded the siren it frightened him, and made him nervous.
The county attorney asked defendant if he did not go to Turpin prior to driving to Forgan after leaving his farm. Defendant answered “No, sir”. He was then asked: “Did you tell the highway patrolman at the time he picked you up that you came ,by Turpin and got something to drink?” Defendant answered, “No, sir”. He then denied having anything to drink at all. The court overruled an objection to this line of cross-examination, which was a correct ruling, providing the county attorney had produced the highway patrolman on rebuttal to have shown that the defendant did in fact make such a statement. This was not done.
We conclude from the record that a fact question was presented and that it was in the province of the jury to determine the issue as to defendant’s intoxication. Sadler v. State, 84 Okl.Cr. 97, 179 P.2d 479.
As to the damaging question asked, not later supported ' by proof, the same principle is involved as where a county attorney in his opening statement attributed to the wife of an accused certain damaging statements and accusations made to accused in the presence of others, and not shown to have been denied, but where the State offered no proof in support of such assertions. See Hilyard v. State, 90 Okl.Cr. 435, 214 P.2d 953, 28 A.L.R.2d 961.
It is the conclusion of this court, therefore, that the judgment must be affirmed, but by reason of. the conflict in- the evidence and the failure of the county attorney to support by testimony the above recited question asked defendant on cross-examination, indicating defendant’s admission of having consumed intoxicants just prior to his arrest, that such question was prejudicial. While we think from the evidence- as a whole that the error is not sufficient to cause a reversal of this case, we do think that under the circumstances that fairness impels a modification of the judgment by omitting the jail sentence; and as thus modified, the judgment appealed from is affirmed.
JONES, P. J., and BRETT, J., concur.