Bartley v. State, 36593
| Decision Date | 02 April 1957 |
| Docket Number | No. 2,No. 36593,36593,2 |
| Citation | 98 S.E.2d 110,95 Ga.App. 422 |
| Parties | W. L. BARTLEY v. The STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. In order to convict one for driving under the influence of intoxicants (Code Ann.Supp. § 68-1625), it must be shown that it is less safe for the defendant to operate the car than it would have been had he not been drinking.
2. It is erroneous for the court to charge the jury that it would be their duty to convict the defendant, 'if you find he was under the influence of intoxicating liquor or drugs,' without going further and charging that the jury must first find that the defendant is a less safe driver.
The defendant was convicted for operating a motor vehicle upon a public street while under the influence of intoxicants. His amended motion for new trial was denied, and he excepts.
The evidence shows that Carl Duke, Chief of Police of Flowery Branch, Georgia, testified that the defendant turned across the railroad tracks, 'in a fast manner.' That is the only evidence from that witness as to the manner in which the defendant was driving. The witness swore that he smelled whisky on the defendant's breath. Dorsey Peek, a deputy sheriff, testified that he smelled 'some alcoholic beverage on the breath of the defendant.' The witness testified: 'I do not know whether this man operated an automobile under the influence or not.' The witness also testified that the defendant's wife told that she was driving the car.
A nephew of the defendant testified that he saw the defendant's wife driving the car on the occasion in question, not the defendant; that he followed them home in order to borrow a rifle; that the defendant's wife was driving the car all the way through town and to their home; that after they got in the driveway the defendant then got in the car to move the car in order to unload some coal from the trunk.
Stow & Andrews, Gainesville, for plaintiff in error.
Jeff C. Wayne, Solicitor-Gen., Sidney O. Smith, Jr., Gainesville, for defendant in error.
We do not ordinarily pass on the general grounds when we are reversing the case on special grounds, but here we might say that the evidence is not sufficient and conclusive to show that the defendant was guilty of driving while under the influence. Unless the evidence upon another trial is decidedly stronger against the defendant than it appears in the record now before us, no conviction will lie.
In support of the contention that the evidence supports the verdict, counsel for the State cites McGregor v. State, 89 Ga.App. 522, 80 S.E.2d 67. In that case the evidence showed that the defendant was intoxicated, was driving at the rate of ninety miles per hour and wrecked the car. There is no evidence of excessive speed in the instant case. The only evidence whatsoever as to the manner of driving the car was that of the chief of police, that the defendant was driving in a fast manner. In Jowers v. State, 88 Ga.App. 859, 78 S.E.2d 261, cited by the State, the defendant was described as driving the car by swerving it back and forth across the road and the defendant was staggering. The evidence in the case at bar shows no such driving and there was no evidence that the defendant was sufficiently drunk to be staggering. In Bishop v. State, 92 Ga.App. 494, 88 S.E.2d 746,...
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Cook v. State
...456(2), 86 S.E.2d 7; Sims v. State, 92 Ga.App. 169, 88 S.E.2d 186; Turner v. State, 95 Ga.App. 157, 97 S.E.2d 348; Bartley v. State, 95 Ga.App. 422, 98 S.E.2d 110; Hardrick v. State, 96 Ga.App. 670(2), 101 S.E.2d 99; Flanders v. State, 97 Ga.App. 779, 104 S.E.2d 538; Hooks v. State, 97 Ga.A......
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Bryant v. State
...he was so affected thereby as to make it less safe for him to operate the vehicle which he was in fact operating (Bartley v. State, 95 Ga.App. 422, 424(1), 98 S.E.2d 110) it is not necessary that a witness testify in so many words that in his opinion it was less safe, where the facts testif......
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Burkhalter v. State, 46828
...377, 25 S.E.2d 584; Hinson v. State, 88 Ga.App. 318, 77 S.E.2d 63; Bishop v. State, 92 Ga.App. 494, 88 S.E.2d 746; Bartley v. State, 95 Ga.App. 422(1), 98 S.E.2d 110; Wells v. State, 110 Ga.App. 507, 139 S.E.2d 151. The evidence, at best, only tends to raise a suspicion of the guilt of the ......
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