Donley v. State

• Decision Date: 28 April 1945
• Docket Number: No. 30778.,30778.
• Citation: 33 S.E.2d 925
• Parties: DONLEY. v. STATE.
• Court: Georgia Court of Appeals

33 S.E.2d 925

DONLEY.

v.STATE.

No. 30778.

Court of Appeals of Georgia, Division No. 1.

April 28, 1945.

Syllabus by the Court.

Where the answer of a witness is that the defendant was under the influence of intoxicating liquor, the jury is authorized to say that since the observed matter in issue can not be so fully and accurately described as to put the jury completely in the place of the testifying witness, thus enabling the jurors to draw the inference equally as well as the witness, they may determine the condition of the defendant from the direct testimony of the witness who observed him, rather than from a subsequent description of his conduct by the witness.

Error from City Court of Blakely; Jas. W. Bonner, Judge.

Gordon Donley was convicted of driving an automobile while intoxicated, and he brings error.

Affirmed.

Lowrey Stone, of Blakely, for plaintiff in error.

Horace Bell, Sol, of Blakely, for defendant in error.

MacINTYRE, Judge.

The evidence authorized the verdict finding the defendant guilty of driving an automobile while under the influence of intoxicating liquor. The evidence for the State was as follows: "I am now, and was on March 22, 1942, deputy sheriff of Early County. On that day, about 1 o'clock in the morning, I made a routine trip to Troy White's place, located about a mile west of Blakely on the Blakely to Columbia highway. There were some twelve or fifteen cars parked around there, and I parked my car near them where I could see into the door. I saw the defendant get out of his car and go into White's place, where he spoke to White and bought and drank a coca cola. When he finished drinking the coca-cola, he came out, got into his car, backed it within ten feet of my car, and drove toward Blakely. I drove after him and stopped him about a quarter of a mile from White's, and arrested him. I got someone to drive his pick-up to town, because I did not consider him in condition to drive. When I arrested him I could smell alcohol on his breath. There was no whisky in his car. His car was a pick-up truck with a slat body. I consider he was under the influence of intoxicating liquor because I smelled in on his breath when I arrested him, and because he seemed to stagger or walk differently from what he ordinarily did when he got out of the car to go into White's place. These are the only reasons I have for saying he was under the influence of liquor. There was nothing wrong with his driving or his operation of the car. He drove straight, stayed on the right side of the road, did not drive fast, did not wobble or run from side to side of the road, and stopped when called on to do so." The defendant in his statement to the jury denied his guilt. Under the defendant's statement the jury would have been authorized to acquit him. However, they accepted the evidence for the state and convicted him.

It was competent for the witness to testify that the defendant was under the influence of intoxicating liquor. Where the deputy sheriff, a witness who had an opportunity to observe and did observe the defendant, testified that the defendant was under the influence of intoxicating liquor, this was a statement of fact actually observed by the witness at the time as evidenced by the defendant's conduct and appearance. Johnson v. State, 69 Ga.App. 377, 25 S.E.2d 584. In Guedon v. Rooney, 160 Or. 621(7), 87 P.2d 209, 120 A.L.R. 1298, it is said: "A witness who satisfactorily shows that he had opportunity to observe and did observe a person's condition may state whether such person was intoxicated and the extent of such intoxication, and whether that person had been drinking or was just recovering from a state of drunkenness, since the facts can not be presented or depicted to the jury precisely as they appeared to the witness and it is impracticable for him, from the nature of the subject, to relate the facts without supplementing their description...