dissenting:
It is my opinion that the evidence, when taken in the light most favorable to the State, fails to make out a prima facie case of operating a vehicle on a public highway while under the influence of intoxicants. It is conceded that there is ample evidence of public drunkenness. But on the issue of operating the vehicle the showing merely creates suspicion and leaves the matter in the realm of conj ecture.
The majority opinion asserts: “This is a case of circumstantial evidence,” and acknowledges that “It is true that no one actually saw defendant driving the automobile . . . .”
I do not agree that the circumstances listed are sufficient to withstand a motion for nonsuit.
With reference to defendant’s condition patrolman Pridgen testified: “I tried to rouse him up and I opened the door and shook him. I couldn’t get any sense in him at all. He would just groan .... He could not walk ... he was just as limber as he could be. He didn’t say a word.” The patrolmen took him bodily from the Ford, placed him in the patrol car and took him to jail. If this evidence tends to *167prove anything, other than public drunkenness, it is that defendant was utterly incapable of operating the Ford automobile. How long had he been in this condition? One minute, one hour, longer? Any possible answer is a pure assumption, a mere guess. There is no evidence of intoxicating beverages in or near the vehicle. No empty or partially empty bottles were found. As to when or where he did the drinking and lapsed into a drunken stupor there is no evidence.
Stress is laid upon the testimony that the car was not at this location fifteen minutes before defendant was apprehended. In the majority opinion it is said that the evidence does not show anyone else was there. By the same token, the evidence does not show that there were not others there. The real weakness of this case consists of the things the evidence does not show. There is no evidence that the officers made any effort to determine whether there were other persons in or near the premises. Besides, there is no evidence as to whether or not there were dwellings or other buildings nearby.
There is no evidence that defendant owned the automobile. Surely this was a matter within the knowledge of the patrolmen, or which could have been easily determined by them. There is no evidence that defendant had been seen alone in this car at any other location on this night.
It is true that the motor was running and the lights were burning. Even so, there is no evidence that defendant was doing anything to set the vehicle in motion. If it be assumed that he had driven the car in an intoxicated condition, and had sufficient presence of mind to drive it off the hard surface and park it to avoid detection, must it not also be assumed that he had presence of mind sufficient to cause him to stop the motor and turn off the lights? If the running motor and burning headlights tend to prove anything against defendant, it is that he had made preparation to drive. But mere preparation is not sufficient for conviction even of an attempt to commit a crime. State v. Surles, 230 N.C. 272, 275, 52 S.E. 2d 880.
In order to sustain the conviction, it is necessary to make assumptions and deal in possibilities. Facts are lacking. The operation of a motor vehicle by a person under the influence of intoxicants imports motion of the vehicle, and does not embrace holding an automobile motionless by putting the foot on a brake pedal. State v. Hatcher, 210 N.C. 55, 185 S.E. 435. Sitting in a parked car while it rolls backwards under the force of gravity is not operating. State v. Robbins, 243 N.C. 161, 90 S.E. 2d 322. Conceding there is evidence that the Ford automobile had been moved to the location in front of the Service Center within a 15-minute period prior to defendant’s arrest, there is still the unanswered question: Who drove it there? The *168defendant was never seen in the Ford at another place, and was never seen in the Ford at this place while it was in motion.
We have found no case in this or other jurisdictions with the same factual situation as that here presented. There are cases somewhat similar. The results reached are about evenly divided; but the result in each case is made to depend upon the peculiar circumstances of the particular case. The majority opinion relies on tyro cases. State v. Hagen, 176 Kan. 594, 272 P. 2d 1117 (1952); State v. Baumgartner, 21 N.J. Super. 348, 91 A. 2d 222 (1952). There are important factual differences between these cases and the one at bar. In other cases the decisions favored the defendants. State v. Hall, 271 Wis. 450, 73 N.W. 2d 585 (1955); State v. McDonaugh, 129 Conn. 483, 29 A. 2d 582 (1942).
It appears contrary to our concept of presumption of innocence and the justice individuals have the right to expect in our courts to permit a jury to consider whether or not this defendant is guilty from the evidence beyond a reasonable doubt when essential elements must be assumed from pure conjecture and possibilities.
I am authorized to say that HiggiNs J., joins in this dissent.