We have gone over this record and heard the arguments of counsel and think that jn-asmuch as there was but one offense — and apparently the police in order to make sure swore out two affidavits, one for careless driving and the other for intoxication, thinking perhaps that in case they were unable to prove intoxication they could prove careless driving, —we have heard these two cases together.
We think the record of this case shows that the defendant was driving his car while intoxicated and that the court had sufficient evidence before him to warrant the conviction. We think, however, that it being the same act, that it does not seem to be right or just that the man should be punished twice for the same offense and, therefore, the judgment in the careless driving case. No. .9198, will be reversed and the defendant discharged in this case.
In case No. 9199, driving while intoxicated, there is nothing in the case but the weight of the evidence which would warrant the court in disturbing it, and inasmuch- as we are not in the habit of weighing the evidence, the trial court having the parties before it, we do not feel called upon to disturb the finding in this respect. The judgment will, therefore, be affirmed in case No. 9199.
(Sullivan, PJ., and Levine, J., concur.)