Fountain v. Smith, 38575
| Decision Date | 27 February 1961 |
| Docket Number | No. 38575,No. 2,38575,2 |
| Citation | 103 Ga.App. 192,118 S.E.2d 852 |
| Parties | R. E. FOUNTAIN v. E. L. SMITH |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. 'A witness who satisfactorily shows that he had an opportunity to observe and did observe a person's condition may testify, as a statement of fact actually observed by him, whether such person was under the influence of intoxicating liquor.' Grier v. State, 72 Ga.App. 633, 634(2), 34 S.E.2d 642.
2. 'Where testimony is provisionally admitted, it is the duty of counsel to later renew his objection to the admission of such evidence, if he desires to have it excluded, and upon his failure to do so, reversible error is not shown.' Bryan v. Barnett, 205 Ga. 94(3), 52 S.E.2d 613.
3. A requested charge which is not adjusted to the issues nor applicable to the facts of the case may be refused.
4. 'A charge should be given substantially in the language requested; nevertheless, if the charge on the subject requested is fully and fairly given, it is not error that the exact language of the request is not used.' Sims v. State, 84 Ga.App. 753, 756, 67 S.E.2d 254.
E. L. Smith filed an action for damages in the Superior Court of Montgomery County against Robert Earl Fountain as a result of an automobile collision. When the case was tried, a verdict was returned in favor of the plaintiff in the amount of $9,995.
There was evidence adduced on the trial showing the following facts: On the afternoon of the collision the defendant parked his automobile near the Montgomery County jail. The defendant and DeputySheriff Clyde Carter engaged in a conversation. The deputy sheriff testified that at that time he observed a bottle of whisky in the seat of the defendant's automobile; that he was of the opinion that the defendant had been drinking, as well as a woman who was sitting in the defendant's automobile. Thereafter, the defendant got into his automobile and departed at a rapid speed causing the tires of his automobile to 'squall'. The defendant returned and circled the square adjacent to the jail at a rapid speed. On hearing the commotion, the sheriff of Montgomery County, who is the plaintiff in this suit, came out of the jail, and he andDeputy Sheriff Carter got into the sheriff's automobile and proceeded in pursuit of the defendant with the deputy driving; when they came in sight of the defendant's automobile, the defendant accelerated his automobile. Thereafter, the pursuit continued at speeds in excess of 100 miles per hour. The officers testified that the sheriff's vehicle was equipped with a siren and a red light, and each was used during the chase; that on one occasion the sheriff's vehicle was abreast of the defendant's automobile with the siren open and horn blowing in an attempt to stop the defendant. The defendant turned his vehicle to the left causing the sheriff and his deputy to drop back; that two more attempts were made to bring the sheriff's automobile alongside the defendant's vehicle, and each time the defendant turned to the left of the road, and the officers then decided to keep in sight of the defendant's automobile and radio ahead for road blocks.
As the chase continued through the city limits of Hazelhurst and onto U. S. Highway 341, the defendant attempted to pass an automobile ahead of him while another automobile was approaching from the opposite direction; that the defendant's automobile struck the automobile he was attempting to pass and also struck the left rear side of the approaching vehicle, which threw it into the line of traffic of the sheriff's automobile, and the sheriff's automobile collided with such vehicle resulting in injury being inflicted upon the sheriff.
The defendant left the scene of the occurrence and traveled a considerable distance and turned off the main road, stopping some distance therefrom where he was found by other officers, and he and his companion were taken to jail by menbers of the State Highway Patrol. These officers testified that the defendant appeared to be under the influence of intoxicants.
The defendant introduced witnesses who were either near the scene of the accident or traveling along the route, who testified that they neither heard a siren nor saw any markings upon the sheriff's automobile showing it to be a vehicle used in connection with law enforcement. The defendant testified that he knew an automobile was following him, but that he did not know it was the sheriff's; that he did not attempt to force the sheriff's vehicle off the road; that when the collision occurred, he was attempting to pass an automobile in order to get away from the pursuing vehicle; that he, at no time, was intoxicated; that he, at no time in the afternoon, heard a siren nor saw a red light.
The defendant produced other witnesses, who had been with the defendant earlier in the afternoon, who testified that he had not been drinking at the time they saw him.
It is undisputed that no markings were on the sheriff's automobile to identify it as a vehicle used in connection with law enforcement.
After the rendition of the verdict and judgment entered thereon, the defendant filed a motion for a new trial and later amended it by adding several special grounds. To the overruling of the motion for a new trial, as amended, the defendant excepts and assigns same as error.
Sharpe & Sharpe, T. Malone Sharpe, T. Ross Sharpe, Lyons, for plaintiff in error.
J. C. Bivins, Mount Vernon, Gordon Knox, Jr., Hazelhurst, J. H. Highsmith, Baxley, for defendant in error.
1. Special grounds 6, 7, 8, 9, 10 and 11 of the motion for a new trial, as amended, assign as error the admission of testimony of various officers relating to whether or not the defendant was under the influence of intoxicating liquor at or near the time of the collision. Before such evidence was admitted, a proper foundation had been laid showing facts by which the witnesses reached the opinion that the defendant was under the influence of intoxicating liquor. The witnesses then testified that the defendant had been drinking, or appeared to have been drinking.
This Court has held that a witness may testify directly as to the fact of whether a person is intoxicated. The reason usually given is that the exact condition of an intoxicated person cannot be depicted to the jury precisely as they appeared to the witness. Hinson v. State, 88 Ga.App. 318, 77 S.E.2d 63; Grier v. State, 72 Ga.App. 633, 34 S.E.2d 642; Donley v. State, 72 Ga.App. 429, 33 S.E.2d 925. Furthermore, in the instant case the record reveals that the witnesses did testify as to facts on which they based their opinion that the defendant was intoxicated, after showing an opportunity of observing him. Code. § 38-1708; Central Railroad v. Senn, 73 Ga. 705. Such testimony is not expert opinion testimony, but testimony as to an ultimate fact. Andrews v. State, 102 Ga.App. 423, 116 S.E.2d 345; Hill v. Rosser, 102 Ga.App. 776, 117 S.E.2d 889. These special grounds are without merit. Under the above ruling the charge assigned as error in special ground 12 was applicable and not erroneous. 'In the absence of a timely written request, the mere fact that opinion evidence was introduced does not require an instruction as to the weight of such evidence.' Fort v. State, 31 Ga.App. 525(1), 121 S.E. 128; Davis v. State, 205 Ga. 248, 53 S.E.2d 545. ...
To continue reading
Request your trial
-
Meeks v. Lunsford
...condition of an intoxicated person cannot be depicted to the jury precisely as they appeared to the witness.' Fountain v. Smith, 103 Ga.App. 192, 195, 118 S.E.2d 852, 854. See Donley v. State, 72 Ga.App. 429, 33 S.E.2d 925, supra; Grier v. State, 72 Ga.App. 633, 34 S.E.2d 642, supra. It is ......
-
General Gas Corp. v. Whitner, 40980
...S.E.2d 615; Harris v. State, 74 Ga.App. 614, 616, 40 S.E.2d 664; Scoggins v. State, 98 Ga.App. 360, 363, 106 S.E.2d 39; Fountain v. Smith, 103 Ga.App. 192, 118 S.E.2d 852; Davis v. Cobb County, 106 Ga.App. 336, 337, 126 S.E.2d 710; 32 C.J.S. Evidence § 546(23), p. 158; 20 Am.Jur. 719, § 8. ......
-
Baldwin Processing Co. v. Georgia Power Co., 41142
...and it was not error to have failed to give such charge. See Terry v. Fickett, 199 Ga. 30, 31(9), 33 S.E.2d 163; Fountain v. Smith, 103 Ga.App. 192(3), 118 S.E.2d 852. 'A refusal to charge a principle of law not adjusted to the facts disclosed by the evidence is not error. A fortiori it is ......
-
Lawrence v. State, 60931
... ... Fountain v. Smith, 103 Ga.App. 192(1), 118 S.E.2d 852 (1961); Bagley v. Smith, 98 Ga.App. 825, 826(2), 107 ... ...