By the Court
(Yoorhees, Shields and Powell, JJ.).
• The plaintiff in error was arrested upon a charge of being found in a state of intoxication; and, upon a trial had before the mayor of the city of Newark, was convicted. The case is brought to this court for review of the judgment of the mayor upon such trial.
There are various degrees of intoxication. The statute is that “whoever is found in a state of intoxication shall be fined five dollars.’ The proof shows that the plaintiff, at the time of his arrest, had a flushed face; was talkative, talking loudly, and that his breath smelled of intoxicating liquors that could be detected three or four feet away. These are the only things that tended to show the truth of the complaint charged. We are of the opinion that the statute contemplates something different from what the proof shows; that while any sort of exhilaration from the use of intoxicating beverages might be termed “intoxication,” yet the statute contemplates that something more than is shown by the proof in this ease should be included in the charge made. “Whoever is found in a state of intoxication” would, by implication, mean that the party accused had lost control to some extent either of his faculties or possibly of his muscles. Nash’s Pl. & Practice, 5th Ed., Sec. 1719.
This court is of the opinion that the proof does not sustain the charge; that the judgment of the mayor is against the evidence, and against the weight of the evidence, and the same will be reversed and the prisoner discharged.
Exceptions may be noted.