Hodges v. State, 37876

• Decision Date: 21 September 1959
• Docket Number: No. 2,No. 37876,37876,2
• Citation: 100 Ga.App. 611,112 S.E.2d 373
• Parties: Margaret HODGES v. STATE
• Court: Georgia Court of Appeals

Page 373

112 S.E.2d 373

100 Ga.App. 611

Margaret HODGES v. STATE.

No. 37876.

Court of Appeals of Georgia, Division No. 2.

Sept. 21, 1959.

Rehearing Denied Nov. 4, 1959.

James R. Venable, Atlanta, for plaintiff in error.

Paul Webb, Solicitor-General, John I. Kelley, Solicitor, B. B. Zellars, Eugene L. Tiller, Atlanta, for defendant in error.

Syllabus Opinion by the Court.

TOWNSEND, Judge.

1. Margaret Hodges was tried and convicted in the Criminal Court of Fulton County for violation of certain traffic laws. Count 1 alleged that she operated a motor vehicle 'on Roswell Road, a public highway of said State and county, through a residence district in the City of Atlanta at a speed in excess of 35 miles per hour, and at an alleged speed of 80 miles per hour, the lawful speed limit in said residential district and upon said highway being 35 miles per hour.' Such accusation charges a violation of State law, Code, § 68-1626, which fixes the maximum legal speed in any business or residence district at 35 miles per hour and the maximum daylight speed at 60 miles per hour elsewhere unless reduced as provided in other sections of the act. The testimony of the arresting officers, who were following the defendant on various public roads of Fulton County, some within and some without the city limits, was that they were following her along the road in question at a speed of 80 miles per hour and 'were not gaining on her', and that the area where she was traveling at this speed was a residential area where the speed limit was 35 miles per hour. The charge in this count of the accusation is that the defendant violated § 68-1626(b)(1) of the code Supplement in that she drove in excess of 35 miles per hour in a business or residence district by driving 80 miles per hour therein. In order to be sufficient to convict, the evidence must show therefore that (1) she drove in such a districe, and (2) that her speed was in excess of 35 miles per hour. She was not charged under subsection (2) of the act which fixes the speed limit at 60 miles per hour from one half hour before sunrise until one half hour after sunset and at 50 miles per hour at other times, in places other than business or residence districts and places where the speed limits have not been reduced as otherwise provided in the act. Accordingly, the evidence merely that she was driving 80 miles per hour would not be sufficient to convict under this accusation, since the evidence must also show that she was in a business or residential district. The officer testified that she was traveling at a speed of 80 miles per hour in a residential area where the speed limit was 35 miles per hour. In the absence of any showing to the contrary, this testimony is sufficient to show that she was in such an area that had previously been so declared and appropriately marked, and nothing in this decision is to be construed as authorizing a peace officer to decide that a motorist who is driving an automobile on a public highway in this State in excess of 35 miles per hour is guilty of exceeding a speed limit where such driving occurs in an unmarked area which has not been previously determined as a business or residence district. To allow officers to arbitrarily decide this question would be an unlawful assumption of legislative powers, judicial approval of which could only result in the establishment of a police state here. There was, accordingly, sufficient evidence to support the verdict as to this count.

2. (a) In count 2 the defendant was charged with failing to obey a stop sign at the intersection of Jett Road and Powers Ferry Road, public highways of Fulton County, Georgia. The testimony of the police officers was that the defendant was proceeding down Jett Road and that she turned into Powers Ferry Road without stopping before entering the intersection as required by the stop sign, and that both of these roads are public highways. Accordingly, this count of the accusation also is supported by evidence.

(b) As to the...