Harper v. State, 35510
| Decision Date | 03 February 1955 |
| Docket Number | No. 2,No. 35510,35510,2 |
| Citation | 91 Ga.App. 456,86 S.E.2d 7 |
| Parties | Cartrell HARPER v. The STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The grounds of a motion for a new trial must be approved by the trial court, and a ground is not approved when the trial court appends a note to the motion stating facts in conflict with any statement in the ground which would be material in reviewing the error assigned therein; and those grounds of the motion for a new trial which are not approved or verfied by the trial court present no question for determination by this court. Williford v. State, 56 Ga.App. 40(9), 192 S.E. 93, and citations. Special grounds 1 and 5 of the motion for a new trial presently under consideration come within the rule stated and will not be considered.
2. One is under the influence of intoxicants within the meaning of Code (Ann.Supp.) § 68-307 when it appears that it is less safe for such person to operate a motor vehicle than it would be if he were not so affected, and it is error for the trial court to charge that one may be convicted of driving under the influence of intoxicants if it appear that he is under the influence of intoxicants to any extent whatsoever.
3. The evidence objected to in special grounds 2 and 3 of the motion for a new trial was inadmissible.
4. The trial court erred in denying the motion for a new trial.
The defendant was convicted of operating a motor vehicle on November 20, 1953, on a public highway of this State while under the influence of intoxicating liquors in violation of Code, § 68-307. His motion for new trial, based on the usual general grounds and five special grounds, was overruled with a special notation by the trial court that the ruling upon which error is assigned in special ground 1 was not the ruling made, and that the excerpt from the court's charge to the jury upon which error is assigned in special ground 5 was not included in the court's instructions to the jury. The defendant has brought the present writ of error to this court to have that judgment reviewed.
J. T. Sisk, Elberton, for plaintiff in error.
H. B. Payne, Sol., Elberton, for defendant in error.
1. Headnote 1, when read in connection with the statement of facts, requires no elaboration.
2. in its instructions to the jury the trial court charged: 'I also give you in charge the following law that will govern in this case:
'That part of section 68-307 of the Code of Georgia provides that no person shall operate a motor vehicle upon any public street or highway in this State whether as owner or operator of such vehicle, while under the influence of intoxicating liquors, or drugs.
' In contemplation of law, an operator of a motor vehicle on the public highways of this State is under the influence of intoxicating liquors when he is affected by intoxicating liquor as to make it less safe for him to operate such vehicle than it would be if he was not affected by such intoxicating liquor.
' On the trial of one charged with operating an automobile upon a public highway in this State while under the influence of intoxicating liquor, it is not necessary for the State, in order to secure a conviction, to show that the accused was drunk, but it is sufficient if the State shows, beyond a reasonable doubt, that the accused (while driving the car) was under the influence of some intoxicant as charged, to any extent whatsoever, whether he was drunk or not.' (Brackets added by this court.)
The defendant, in special ground 4 of his motion for new trial, has assigned error on the two excerpts from the court's instructions to the jury, which we have numbered 1 and 2 and contends that, while the first excerpt contains a correct statement of the applicable law, the second excerpt does not; and, since the two excerpts were given in sequence, the jury was left to choose between a correct and an incorrect statement of the applicable law and consequently was misled and confused. While counsel for the defendant concedes that each of these excerpts has been held by this court on more than one occasion to contain a correct statement of the applicable law, counsel insists that, since each excerpt contains a different criterion for determining the guilt of one charged with operating a motor vehicle on the public streets or highways of this State while under the influence of intoxicating liquors, or drugs, both cannot contain a correct statement of the law; and that, even if each of the two statements could be correct when charged separately, the two statements should never be charged together in the same case. Counsel for the defendant suggests the conflict between the cases of this court on the applicable criterion for determining the guilt of one charged with violating Code Ann.Supp. § 68-307, and requests a clarification of the law on this point by this court by a review of its cases.
From a rather exhaustive search of the cases, we find that the language contained in the second excerpt has been explicitly approved or applied in the following criminal cases: Chapman v. State, 40 Ga.App. 725, 151 S.E. 410; Wallace v. State, 44 Ga.App. 571, 162 S.E. 162; Cavender v. State, 46 Ga.App. 782, 169 S.E. 253; Moye v. State, 46 Ga.App. 727, 169 S.E. 59; Austin v. State, 47 Ga.App. 191, 170 S.E. 86; Lanier v. State, 52 Ga.App. 459, 183 S.E. 658; Parker v. State, 53 Ga.App. 344, 182 S.E. 598; Stegall v. State, 53 Ga.App. 353, 185 S.E. 596; Hall v. State, 58 Ga.App. 398, 198 S.E. 713.
We that find the language contained in the first excerpt has been explicitly approved or applied in the following criminal cases: James v. State, 45 Ga.App. 228, 164 S.E. 104; Hinson v. State, 88 Ga.App. 318, 77 S.E.2d 63; Isenhower v. State, 88 Ga.App. 762, 77 S.E.2d 834; Hamilton v. State, 89 Ga. 159, 78 S.E.2d 875; Hart v. State, 26 Ga.App. 64, 105 S.E. 383.
In Kea v. State, 50 Ga.App. 211, 182 S.E. 802, we find that each of the two excerpts was charged together, the second excerpt being followed by the first, and that the combination of instructions was approved by this court.
The earliest definition of 'under the influence of intoxicants' that we have been able to find in the reported cases from this court is to be found in Hart v. State, 26 Ga.App. 64, 105 S.E. 383. The definition given there is the same as that given in the first excerpt from the charge in the present case. We shall, for convenience, denominate this rule as the 'less-safe' test. We do not encounter the use of the rule stated in the second excerpt from the charge in the present case until we find this court approving that language in Chapman v. State, 40 Ga.App. 725, 151 S.E. 410.
We shall denominate that rule as the to-any-extent-whatsoever' test. Thus, we find that we have two rules for determining the question of when one is under the influence of intoxicants within the meaning of Code Ann.Supp. § 68-307. It is interesting to note that the Hart case, which laid down the 'less-safe' test, is the only authority cited in the Chapman case, where the 'to-any-extent-whatsoever' test is laid down. The genesis of each rule would seem to be found in the Hart case; that is to say, two divergent plants have sprung from the same seed.
The 'to-any-extent-whatsoever' test is applied in Wallace v. State, 44 Ga.App. 571, 162 S.E. 162, and the Chapman case is cited as the sole authority for such application. The 'less-safe' test is subsequently reapplied in James v. State, 45 Ga.App. 228, 164 S.E. 104, whcih relies upon the Hart case and the Chapman case as its authority. But again, we find the court applying the 'to-any-extent-whatsoever' test in Moye v. State, 46 Ga.App. 727, 169 S.E. 59, where the Wallace, Chapman, and James cases are relied upon as authority. The same test is applied in Austin v. State, 47 Ga.App. 191, 170 S.E. 86, and the Hart and Chapman cases are relied upon as authority. In Lanier v. State, 52 Ga.App. 459, 183 S.E. 658, the 'to-any-extent-whatsoever' test is followed by simple reliance on the Austin case, and that was the procedure followed in Stegall v. State, 53 Ga.App. 353, 185 S.E. 596. In Parker v. State, 53 Ga.App. 344, 185 S.E. 598, the 'to-any-ext...
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