Ferrell v. State

• Decision Date: 20 March 1979
• Docket Number: No. 56831,56831
• Citation: 254 S.E.2d 404,149 Ga.App. 405
• Parties: FERRELL v. The STATE.
• Court: Georgia Court of Appeals

Page 404

254 S.E.2d 404

149 Ga.App. 405

FERRELL v. The STATE.

No. 56831.

Court of Appeals of Georgia.

Argued Oct. 30, 1978.

Decided Feb. 22, 1979.

Rehearing Denied March 20, 1979.

Hirsch Friedman, Atlanta, for appellant.

Herbert A. Rivers, Sol., Richard B. Kuniansky, Asst. Sol., for appellee.

SHULMAN, Judge.

Benjamin Troy Ferrell was issued a traffic citation by the Cobb County Police Department charging him with speeding, reckless driving and eluding a police officer. It appears from documents signed by Ferrell and his attorney that he pled not guilty in traffic court and demanded a jury trial, and was given a return slip to appear in the State Court of Cobb County on February 6, 1978. The state drew a new accusation alleging the same offenses and adding a driving under the influence charge. Ferrell filed another demand for jury trial on March 6, and requested a continuance to March 8. He failed to appear on that date and signed a return slip to the next term.

The case was tried May 1, 2 and 3. Prior to trial several motions were heard, including a plea of autrefois acquit and a motion to suppress. All were denied and Ferrell then demanded an arraignment, which was also denied. The jury found him guilty of speeding, reckless driving and eluding a police officer, acquitted him of driving under the influence, and this appeal ensured.

1. Ferrell's argument that his plea of autrefois acquit should have been granted because the failure of the state to try him in Cherokee County on charges of driving under the influence and leaving the scene of an accident amounted to an acquittal of the same conduct of which he was accused in Cobb County is without merit. It cannot be determined from the record whether criminal proceedings were instituted against Ferrell in Cherokee County. However, the DUI was the only offense prosecuted in Cobb County which was the same as one alleged by Ferrell to have been charged in Cherokee County. The issue thus became moot when he was acquitted of that charge in Cobb County. Even so, every county has the authority to prosecute offenses occurring within its jurisdiction, whether or not another county prosecutes for the same offense, as long as every element essential to the offense occurred in the prosecuting county. Lunsford v. State, 60 Ga.App. 537(2), 4 S.E.2d 112 (1939); Hall v. State, 73 Ga.App. 616, 37 S.E.2d 545 (1946).

2. It follows that denial of a separate trial on a plea of former jeopardy was likewise harmless.

3. Ferrell's complaint that failure to formally arraign him in state court constituted reversible error cannot be sustained. "The purpose of arraignment being to put the defendant on notice as to the charge against which he must defend, the only formal arraignment necessary is reading the indictment to the accused and the entering of his plea of not guilty. (Cits.)" Clark v. State, 138 Ga.App. 266, 271(7), 226 S.E.2d 89, 93 (1976). Here Ferrell was issued a traffic citation informing him to appear in traffic court. He appeared, was necessarily informed of the charges against him to which he entered a plea of not guilty, and demanded a jury trial.

"Even if appellant was not properly arraigned, he waived formal arraignment by making a demand for trial and thereafter filing his motion to suppress. He in effect pleaded to the merits when he presented the issue of law, and, even though he might not have been formally arraigned, he had a right to waive arraignment, and by his conduct did waive it. Baskin v. State, 137 Ga.App. 840, 225 S.E.2d 77." Sisson v. State, 141 Ga.App. 559, 561(4), 234 S.E.2d 146, 148 (1977); Hiatt v. State, 144 Ga.App. 298, 299(5), 240 S.E.2d 894 (1977).

4. Ferrell insists that his motion for directed verdict should have been granted on the speeding charge because no competent evidence was introduced to establish how fast he was driving. On the contrary, the ticketing officer testified that he observed Ferrell going 85 miles per hour in a 35 mile per hour zone, and that he "clocked" him at around 83 to 84 miles per hour. Counsel for Ferrell objected to the admissibility of this evidence on the ground that there was no certification that the officer's speedometer had been calibrated, but this objection was properly overruled.

A witness may testify as to the speed of an automobile even if he got only a "glimpse" of the vehicle. Presley v. Griffith, 112 Ga.App. 377(1), 145 S.E.2d 384 (1965). " 'It is not held to be objectionable to allow a witness to testify to his opinion of the speed of a horse, a train of cars, and various movable objects. The jury can give this opinion just such weight as they think proper, judging it by the circumstances and the opportunities enjoyed by the witness for forming a correct opinion.' Augusta R. & Elec. Co. v. Arthur, 3 Ga.App. 513, 517, 60 S.E. 213, 215. And the witness may offer such speed as his estimate, although he refuses to swear positively that his estimate of the speed is absolutely accurate, where it appears that he believes it to be substantially correct, the credit to be given such testimony being for the jury. Thornton v. King, 81 Ga.App. 122(4), 58 S.E.2d 227; Engle v. Finch, 37 Ga.App. 389(4), 140 S.E. 632; Rentz v. Collins, 51 Ga.App. 782(4), 181 S.E. 678." Ellison v. Evans, 85 Ga.App. 292, 297, 69 S.E.2d 94, 97-98 (1952).

5. This court is not aware of any rule of law which requires the trial judge to instruct the state not to discuss its case with its own witnesses, nor has any been cited by the appellant. This enumeration is devoid of merit.

6. Arguments that a witness whose name did not appear on the witness list was erroneously allowed to testify because the state knew of him prior to furnishing the list are not borne out by the record. Both solicitors stated that the evidence was newly discovered because the witness had not been located until 6:30 that morning. This was sufficient to meet the requirements of the Code Ann. § 27-1403 exception to consent of the defendant. Wooten v. State, 145 Ga.App. 743, 245 S.E.2d 34 (1978); Foster v. State, 145 Ga.App. 595(1), 244 S.E.2d 118 (1978); Huff v. State, ...