Ekstromer

Defendant was convicted of violating section 112 of the California Vehicle Act (Stats. 1923, p. 553), in driving and operating an automobile on a public highway while under the influence of intoxicating liquor. He was sentenced to ninety days in the county jail, and he now appeals from the judgment and from an order denying his motion for a new trial.

Section 112 of the Vehicle Act reads as follows: “Persons under influence of liquor or drugs. No person who is under the influence of intoxicating liquor or who is an habitual user of narcotic drugs shall drive a vehicle on any public highway within this state. Any person violating the provisions of this section shall upon conviction be punished by imprisonment in the county jail for not less than ninety days nor more than one year or by imprisonment in the state prison for not less than one or more than three years or by a fine of not less than two hundred dollars nor more than five thousand dollars.”

A police officer arrested defendant soon after his automobile and that of one Bates collided at Bush and Leavenworth Streets, San Francisco, between 7:30 and 8 o’clock P. M. of October 13, 1923. Defendant had been driving south on…