Defendant appeals from a judgment of conviction of driving while intoxicated, as a felony (Vehicle and Traffic Law, § 1192). The defendant did not testify and the court charged in part: “ ‘ Neither can you draw inference of guilt from the defendant’s failure to take the witness stand. He may testify in his own behalf, but he has no obligation to so do. You must not draw any inference of guilt from his failure to do so, but he has the opportunity to offer proof he was not intoxicated. The defendant, in this case failed to use that opportunity to explain his condition. You may draw an inference of fact from that state of affairs,’ that he was intoxicated is one element of the crime of which you must be satisfied, beyond a “reasonable doubt in order to render a verdict of guilty.” On this appeal, the District Attorney in his brief candidly stated that he could find no authority to support the charge by the court and that “ The authorities seem to hold that any statement of a Trial Judge in his charge to the jury, which tends to deprive the defendant of the full protection of § 393 of the 'Code of Criminal Procedure, is reversible error [citations] ”, We do not agree with the contention that the charge, as a whole, is sufficient to overcome the error of law. The defendant alleges failure of proof that he was driving the automobile while intoxicated. The facts in the record established sufficient circumstantial evidence to supply the additional proof required by section 395 of the Code of Criminal Procedure. The request made by the defendant to charge as to intoxication was correct and should be included in the main charge in the event of a new trial. Judgment reversed, on the law and the facts, and a new trial ordered.
Gibson, P. J., Reynolds, Taylor and Aulisi, JJ., concur.