Bradam v. State

• Decision Date: 09 December 1950
• Citation: 191 Tenn. 626,235 S.W.2d 801,27 Beeler 626
• Parties: , 191 Tenn. 626 BRADAM v. STATE.
• Court: Tennessee Supreme Court

Page 801

235 S.W.2d 801

27 Beeler 626, 191 Tenn. 626

BRADAM v. STATE.

Supreme Court of Tennessee.

Dec. 9, 1950.

Rehearing Denied Jan. 13, 1951.

Hardwick Stuart, Cleveland, for plaintiff.

Nat Tipton, Asst. Atty. Gen., for the State.

PREWITT, Justice.

The defendant, Sam Bradam, was convicted of involuntary manslaughter for the unlawful killing of J. C. Smith as a result of the collision of an automobile and a truck on the Cleveland-Ducktown highway a short distance east of the town of Cleveland. The tragedy occurred about 8:30 p. m. in March, 1949. The automobile which deceased was driving approached and struck the truck from the rear. The proof shows that the truck had no lights and that the deceased was driving at approximately fifty miles an hour. The record further reveals that the defendant and the principal state's witness, Jake Clayton, were together during the late afternoon of the night of the killing and that both were drinking heavily; that the truck was stopped where the collision later took place and Clayton testifies that he was sent by the defendant to get some repairs so that the lights might be turned on. The truck was not in motion at the time Clayton left the scene. The state's proof also shows that defendant's hat and glasses were found under the steering wheel and some identification papers found on the bank of a nearby creek, and it also appears that when the defendant was arrested, he was wet all over. Under the proof, and the surrounding circumstances, the jury might well conclude that the defendant drove the truck to the place of the collision and abandoned it. The state insists that the jury could have concluded that the defendant was the operator of the truck and especially would this be true on account of finding his glasses and hat under the steering wheel. The state does not insist that at the time of the collision the defendant was driving the vehicle while in an intoxicated condition but that he was the operator of the truck and that the words 'driving' and 'operating' are in this connection synonomous. The brief filed on behalf of the state states that there is no Tennessee case covering the subject. However, it relies on Barrington v. State, 145 Fla. 61, 199 So. 320, 323. In that case, it was insisted that intoxication was unavailable to the prosecution because the car was stationary rather than in motion. The court in this case stated: 'When the defendant in a drunken state, as the jury justifiably found, drove to the point where he parked his car and left it an obstacle in the path of other automobiles proceeding along the highway, that was an 'operation' of the vehicle while intoxicated, and he cannot be excused for the wrongdoing simply because his car had lost its motion at the time an unwary traveler paid with her life in a collision directly caused by the improper placing of the vehicle by a driver when inebriated.'

The Florida statute denounces the operation of an automobile while under the influence of an intoxicant and our statute prohibits the driving of a motor vehicle while under the influence of an intoxicant.

Section 10827 of Williams' Tennessee Code Ann. provides: '10827. Driving automobile while under influence of intoxicants or narcotic drugs unlawful.--It shall be unlawful for any person or persons, while under the influence of an intoxicant, or while under the influence of narcotic drugs, to drive any automobile, motor car, taxi-cab, automobile truck, motorcycle or other motor driven vehicle in the State of Tennessee, on any of the public roads and highways of the state, or on any of the streets or alleys of any city or town in the state.'

So, then, the offense denounced is 'driving' such a vehicle under certain conditions. The law recognizes in such cases a distinction between driving and operating.

In 5 American Jurisprudence, § 771, it is stated as follows:

'771. 'Driving' or 'operating' Motor Vehicle.--'Driving' an automobile within the meaning of statutes prohibiting driving while intoxicated or while under the influence of intoxicating liquor undoubtedly means that the car must be moving along a street or highway, or such place as falls within the contemplation of the statute, by virtue of the acts of the intoxicated person. Merely starting the motor of a car, or attempting to start it, does not constitute 'driving' within the terms of such acts. However, the fact that the car moved only a few feet does not justify a holding as a matter of law that the accused was not driving.

'A person may be guilty of an attempt to drive a car while intoxicated where he, while intoxicated, inserted the ignition kay and put his foot upon the starter with intent to drive upon a public highway, although he was prevented from carrying the attempt into full execution.

'To constitute 'operatin' an automobile while intoxicated within the meaning of motor vehicle acts, it is not necessary that the vehicle be in motion. Starting the motor and allowing it to idle in neutral, or steering a car as it is being towed to a place of repair, has been held to constitute 'operating' within the meaning of such acts.'

In 61 C. J. S., Motor Vehicles, § 628, it is said that driving or operating a motor vehicle is an essential element of the offense of driving a motor vehicle while intoxicated and it must appear that the accused actually drove such vehicle simultaneously with being in the prohibited condition. Underwood v. State, 24 Ala.App. 191, 132 So. 606; State v. Jones, 124 Conn. 664, 2 A.2d 374; State v. Kissinger, 343 Mo. 781, ...