Donahue v. State

BY THE COURT

We have examined the record and find no evidence of the accused ever having been convicted of a first offense. Therefore, the judgment of the court finding him guilty as of a second offense is erroneous. This error alone, however, would only require a reversal of the judgment as to the sentence imposed and a remanding of the case to the trial court for resentence.

The testimony discloses that it is highly improbable that the several persons testifying for the defense could have ridden in the car of the defendant shortly before he was arrested without having discovered the liquor which the state claims was found on the floor of his automobile. The evidence presented by' the record raises such a grave doubt as to the defendant’s guilt that the judgment must be reversed as against the manifest weight of the evidence.

For the reasons indicated the judgment is reversed and the case remanded to the Court of Common Pleas.

Middleton, PJ, Mauck and Blosser, JJ, concur.