Durham v. State, (No. 6614.)

Decision Date10 July 1928
Docket Number(No. 6614.)
Citation166 Ga. 561,144 S.E. 109
PartiesDURHAM. v. STATE.
CourtGeorgia Supreme Court

(Syllabus by Editorial Staff.)

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Drunk.]

Russell, C. J., and Atkinson J., dissenting in part.

Error from City Court of Summerville; B. E. Neal, Judge.

Mark Durham was convicted of driving an automobile while under the influence of intoxicating liquor, and he brings error. Affirmed.

Wesley Shropshire, of Summerville, for plaintiff in error.

J. F. Kelly, Sol. Gen., of Rome, for the State.

Syllabus Opinion by the Court.

HINES, J. [1-3] 1. It is now well settled that an act which does not purport to amendor repeal any particular law or section of the Code is not within paragraph 17 of section 7 of article 3 of the Constitution of this state, which declares that:

"No law, or section of the Code, shall be amended or repealed by mere reference to its title, or to the number of the section of the Code, but the amending or repealing act shall distinctly describe the law to be amended or repealed, as well as the alteration to be made." Civil Code 1910, § 6445.

Repeals by implication do not fall within the inhibition of this provision of the Constitution. Peed v. McCrary, 94 Ga. 487 (2), 21 S. E. 232; Johnson v. Southern Mutual, etc., Association, 97 Ga. 622, 25 S. E. 358; Swift v. Van Dyke, 98 Ga. 725, 727, 26 S. E. 59; Collins v. Russell, 107 Ga. 423, 426, 33 S. E. 444; Nolan v. Central Georgia Power Co., 134 Ga. 201, 67 S. E. 656; Walt-hour v. Atlanta, 157 Ga. 24, 120 S. E. 613. The Act of August 15, 1921 (Acts 1921, p. 255), entitled "An act to regulate the use of motor vehicles and motorcycles upon the public streets and highways of this state; and to prescribe penalties for violations of the provisions of this act, " does not come under the provisions of the above provision of the Constitution; and section 6 thereof is not unconstitutional and void because it amends, without proper reference thereto, the act of 1910 (Ga. Laws 1910, p. 90), which regulates the use of motor vehicles, and makes penal the operation of such vehicles on a public highway while the operator is drunk.

2. The court charged the jury as follows:

"In this case the defendant is charged by accusation with driving an automobile along the highway while under the influence of intoxicating liquor. In a case of this kind it is not necessary for you to find that the defendant was drunk at the time; but, if you find that he drove an automobile along the Summerville and Rome public road while under the influence of intoxicating liquors or drugs in any manner whatever, you would be authorized to find him guilty."

The accusation charged the defendant with driving an automobile over and along said public road "while drunk and under the influence of intoxicating liquor." The defendant excepts to the above instruction, upon the ground that it is inapplicable to and in direct conflict with the accusation.


(a) Section 6 of the above act provides that "no person shall operate a motor vehicle or motorcycle upon any public street or highway * * * while under the influence of intoxicating liquors or drugs;" and section 12 makes a violation of said provision a misdemeanor.

(b) The above instruction is not as a whole inapplicable to, and is not as a whole in direct conflict with, the accusation. All of it is applicable and conforms to the accusation, except the language, "or drugs in any manner whatever." This language was inapplicable and improperly given in charge; but, under the facts of this case, this was a harmless error, as there was not the slightest reference in the evidence to drugs, and the jury could not have been misled by the use of this language. Kelly v. State, 118 Ga. 329, 45 S. E. 413; Helms v. State, 136 Ga. 799 (3), 72 S. E. 246.

3. The defendant insists that the evidence is insufficient to convict, for the reasons that it consists of the opinions of the arresting officers, without the facts upon which they are based, and does not show whether he was under the influence of liquor or drugs. The arresting officers took the defendant out of the...

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5 cases
  • State v. Glanzman
    • United States
    • Idaho Supreme Court
    • January 26, 1949
    ...202 P.2d 407 69 Idaho 46 STATE v. GLANZMAN No. 7468Supreme Court of IdahoJanuary 26, 1949 ... Appeal ... from District Court, Third ... 199, 299 ... S.W. 646, at page 648; State v. Storrs, 105 Vt. 180, ... 163 A. 560 [6-7]; Durham v. State, 166 Ga. 561, 144 ... S.E. 109; Chapman v. State, 40 Ga. 725, 151 S.E. 410 ... (2d case) ... ...
  • Wilson v. State, 69622
    • United States
    • Georgia Court of Appeals
    • March 12, 1985
    ...that it is a fact. Supporting the former position ("an opinion") are cases such as Choice v. State, 31 Ga. 424 (1860); Durham v. State, 166 Ga. 561, 144 S.E. 109 (1928); Harris v. State, 97 Ga.App. 495, 103 S.E.2d 443 (1958); Lawrence v. State, 157 Ga.App. 264, 277 S.E.2d 60 (1981). Those c......
  • Wood v. State
    • United States
    • Georgia Court of Appeals
    • September 6, 1995
    ...v. State, 157 Ga.App. 264, 277 S.E.2d 60 (1981); Eidson v. State, 167 Ga.App. 184, 185, 305 S.E.2d 787 (1983); Durham v. State, 166 Ga. 561, 562, 144 S.E. 109 (1928). But having done so, the State was entitled to cross-examine Taylor to determine the facts upon which his opinion was based, ......
  • Stewart v. State, 23750.
    • United States
    • Georgia Court of Appeals
    • July 11, 1934
    ...was acquainted with his car, and, no matter how cautiously it was driven, it would "wobble." The state cites the case of Durham v. State, 166 Ga. 561, 144 S. E. 100, which is quoted in Cavender v. State, 46 Ga. App. 782, 169 S. E. 253, as authority for upholding the conviction of the defend......
  • Request a trial to view additional results

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