Defendant was convicted in the District Court of Burleigh County of the crime of operating a motor vehicle upon the public highways of the State while under the influence of intoxicating liquor. He has appealed from an order denying a new trial and from the judgment of conviction. There are two issues raised by the specifications of errors. Does the record upon appeal sufficiently show a consent to oral instructions and is the evidence sufficient to sustain the verdict?
The only references to a consent to oral instructions or a waiver of written instructions are contained in the official court stenographer's transcript of the proceedings upon the trial. They are as follows:
"The Court: We will take a recess until 9:15 tomorrow morning.
"(Written instructions waived by Mr. Murray (the attorney for the defendant). Asked him if he wanted me to work again tonight and he said that would not be necessary. Also waived by Mr. Register)."
There also appears in the record of the succeeding days' proceedings the following: "At the close of the testimony and arguments, counsel *Page 689 for the respective parties having expressly waived written instructions, apart from the presence of the jury, the following oral instructions were delivered by the Court to the jury."
After the hearing held upon notice in accordance with the provisions of ND Rev Codes, § 29-2301 (Chapter 126, ND Laws 1925), the transcript was settled as a part of the statement of the case and was certified by the trial judge as a correct transcript of the evidence and of all proceedings had and made a matter of record by the official stenographer.
The statement of the case when so settled, certified and filed with the clerk became a part of the record upon appeal. ND Rev Codes, § 29-2304.
Defendant challenges the sufficiency of this record upon the grounds, first, that it does not contain an entry of defendant's actual consent but merely the conclusion of the reporter and second, that under the provisions of ND Rev Codes, § 29-2130, an entry of consent to oral instructions is ineffectual unless the entry is contained in the minutes of the trial.
It is true that the record does not quote any statement made by the defendant or his counsel which would constitute a waiver of written instructions and that the only reference to an express waiver appears parenthetically in the introduction to the instructions. The statement that is made, however, to wit: "Counsel for the respective parties having expressly waived written instructions, etc." can only be construed as a statement that written instructions were expressly waived.
As this statement comes to us it is more than a transcript of the stenographer's notes. It is a part of the statement of the case settled and certified as correct by the trial court. Under the statutory procedure for the settlement of a statement of the case, the correctness of the stenographer's transcript may be questioned and if so questioned, the trial judge is required to "make such corrections, if any, as shall be necessary to make the transcript correct." ND Rev Codes, §§ 29-2301 and 28-1806. It is inconceivable that the trial court would certify as correct a conclusion of the official reporter unless statements made by defendant's counsel at the trial justified such conclusion. This is particularly true where, as in this case, the statement in the official stenographer's *Page 690 transcript was questioned at the hearing to settle the statement of the case. The statement of the case properly certified is a "solemn judicial record" which imports absolute verity. Garbush v. Firey, 33 N.D. 154, 156 N.W. 537. The record is thus clear that defendant did waive written instructions.
He contends, however, that under the provisions of ND Rev Codes, § 29-2130, this waiver is ineffective unless it is entered in the minutes of the trial. The statute in question provides: "In its instructons to the jurors, the court shall instruct only as to the law of the case, and all instructions first must be reduced to writing, unless by consent of both parties entered in the minutes, the instructions are given orally and taken down by the stenographer of the court in shorthand."
While the precise question raised here has never been decided by this court, we have assumed in at least two cases that an entry of consent to oral instructions in the statement of the case was sufficient. In State v. Mitchell, 49 N.D. 726, 193 N.W. 310, we considered the question of a consent to oral instructions solely upon the basis of what appeared in the statement of the case and the clear import of the decision is that an entry of consent to oral instructions in the statement of the case would have been sufficient. We adopted the same theory in State v. Hanson, 53 N.D. 879, 207 N.W. 1000. In the latter case the trial judge before giving additional instructions which had been requested by the jury, stated "I don't suppose there is any objection to it not being in writing? The court can put it in writing." At the time this statement was made neither the defendant nor his counsel, who were both present, made any objections. The court thereupon proceeded to give oral instructions. Upon the appeal it was contended that the giving of oral instructions without the consent of the defendant being entered in the minutes was a sufficient ground for reversal. We disposed of the question by saying "In the circumstances, we think there was a waiver by the defendant of the right to written instructions and that error cannot be predicated thereon."
However, conceding for the purposes of this case that it was error not to enter defendant's consent to oral instructions in the clerk's minutes of the trial, the record otherwise shows that the defendant did give his consent. In these circumstances the error, if any, was not *Page 691 prejudicial to any of the defendant's substantial rights and is therefore not a ground for reversal. State v. Hasledahl, 3 N.D. 36, 53 N.W. 430; State v. Carter, 50 N.D. 270, 195 N.W. 567; State v. Gates, 52 N.D. 659, 204 N.W. 350; State v. Bowe, 57 N.D. 89, 220 N.W. 843.
There remains the question of the sufficiency of the evidence to sustain the verdict. Early on the morning of December 11, 1942, the defendant and two companions were driving from Jamestown to Bismarck. At a point approximately three miles west of Driscoll in Burleigh County the car which defendant was driving left the highway, rolled over two or three times and came to rest in the ditch between the highway and the adjoining field. There is no question but that the car was severely damaged. The defendant and the other occupant of the front seat extricated themselves and then helped the occupant of the back seat, who had been asleep, to get out. When all were free of the wreck the defendant volunteered to go for help and set off in a westerly direction down the highway. About fifteen or twenty minutes later a westbound passenger bus operated by Northland Greyhound Lines stopped and picked up defendant's passengers. About two miles farther west upon the highway it picked up the defendant.
According to the testimony of the driver of the bus, the defendant "had difficulty with the first step," leading into the bus. His breath "smelled of liquor" and when asked whether he was the driver of the wrecked car, he loudly and profanely refused to answer the question. He held on to a rail and leaned against the driver's right arm. Another driver for the Northland Greyhound Lines was riding on the bus. He testified that he went forward in the bus and directed the defendant to a seat. When he reached the seat, defendant "sat down rather heavily." The witness sat beside him. He stated there was "a strong odor of liquor" on defendant's breath.
As the bus proceeded toward Bismarck, the defendant, according to the testimony of this witness continued to behave in a truculent manner, talking in a loud voice and constantly using profanity. According to the witness, defendant was advised to moderate his language by a military policeman who was a passenger on the bus, by the witness and by one of his own companions.
The bus arrived at Bismarck about five o'clock A.M. At the bus depot the driver of the bus testified that he asked for the defendant's *Page 692 name but that the defendant refused to give it until a member of the Bismarck Police Force intervened, stating, "if you hadn't been drinking you would give your name." There is also testimony that at the bus depot the defendant had a strong odor of alcoholic liquor on his breath, that his gait was somewhat unsteady, his eyes were red and that he continued to act in a belligerent manner.
According to defendant's testimony, he and one of his companions arrived in Jamestown from Fargo at sometime between ten and ten-thirty the night before the accident; they first went to a restaurant where they had a lunch. They then went over to the Gladstone Hotel where they met a Mr. Breitbach, the hotel manager, and a Mr. Bristol. With Mr. Bristol they went into the Blue Blazer Bar where they remained for about an hour, during which time they each drank one bottle of coco-cola and nothing else. They then went to the Jamestown Elks Club, arriving there about midnight. Following what was said to be a custom, the bartender at the Elk's Club offered the visiting brothers a drink. The defendant drank a whiskey high ball and his companion a bottle of beer. Defendant stated that this whiskey high ball was the only drink of intoxicating liquor he had on the 10th or 11th of December up to and including the time of the accident.
At the Elk's Club the defendant met the gentleman who was to be his second companion on the trip to Bismarck. The record does not disclose the time of their departure. According to defendant when he had reached a point about three miles west of Driscoll, he noticed a vehicle approaching from the west. It had glaring headlights and a spotlight. Just as he was about to pass this vehicle, he noticed that it was a truck with a body which projected well over the center of the road. To avoid a collision he turned sharply to the right driving well out upon the shoulder of the highway which was covered with soft snow and crumbly ice. Upon turning the car back into the highway proper, he struck a patch of ice. He applied the brakes. As he slid off of the ice onto the bare highway the wheels caught in some way and he was unable to maintain control of the car which ran off the road, rolled over and came to rest in the ditch. As to his behavior thereafter both in the bus and in the bus depot he flatly contradicts the witnesses for the State. In all of his testimony he is corroborated by one of his companions. There is evidence in the record, however, which if true completely *Page 693 impeaches this witness. For instance, the bus driver testified that when this witness first entered the bus he stated, "The driver is up front he got some bad news, he has been trying to drown his sorrows with liquor and has been drinking too much."
In support of his contention that the evidence is insufficient to sustain a conviction defendant relies chiefly upon the testimony of Dr. Orr. Dr. Orr testified that in his opinion it was improbable for the defendant to be in a car that was wrecked to the extent that defendant's car was wrecked without suffering some degree of brain concussion and that concussion would account for defendant's behavior. He also stated that the only sure way to have determined whether defendant was under the influence of intoxicating liquor would have been to test the alcoholic content of his blood. With respect to this testimony it is sufficient to say that the law does not require such proof. Testimony as to behavior and breath odor such as the state's witnesses attributed to the defendant in this case is considered sufficient evidence of intoxication. State v. Winberg, 196 Minn. 135, 264 N.W. 578; Smith v. State, 124 Neb. 587, 247 N.W. 421; Degutes v. State,189 Wis. 435, 207 N.W. 948; State v. Graham, 176 Minn. 164, 222 N.W. 909.
Since the evidence was sufficient for the submission of the case to the jury it was for the jury to evaluate the conflicting testimony and determine where the truth lay. State v. Denny,17 N.D. 519, 117 N.W. 869; State v. Keyes, 58 N.D. 700, 227 N.W. 224; State v. Bossart, 61 N.D. 708, 240 N.W. 606.
The judgment of the District Court is accordingly affirmed.
MORRIS, BURR and NUESSLE, JJ., concur.