Huff v. State, 29913.

• Decision Date: 28 January 1943
• Docket Number: No. 29913.,29913.
• Citation: 24 S.E.2d 227
• Parties: HUFF. v. STATE.
• Court: Georgia Court of Appeals

24 S.E.2d 227

HUFF.

v.STATE.

No. 29913.

Court of Appeals of Georgia,

Division No. 1.

Jan. 28, 1943.

Syllabus by the Court.

1. As bearing on the issue of criminally and recklessly driving an automobile in violation of the Code, §§ 68-301, and 68-9919, testimony that "the boys [defendants] had been drinking but were not drunk. I did not say that they were under the influence of liquor, " was competent to prove the circumstances from which the jury could determine the conditions, movements, and conduct of the defendants at the time of the alleged reckless driving. The admission of the testimony was not erroneous on the ground that it put the defendant's character in issue.

2. Where two defendants, under separate accusations, were by consent being tried at the same time for recklessly driving an automobile, and they were both in the automobile at the time of the alleged criminal act, and the judge in his original instructions charged the jury that they could find only one of the defendants guilty, but did not instruct them on the rule of law "no accessories" in misdemeanor cases, but upon a request from the jury recharged in effect that if a defendant was guilty at all in the misdemeanor case on trial he would be guilty as a principal in the first degree, and that in misdemeanors there is no such thing as principal in the second degree, or accessories (Lewis v. State, 33 Ga. 131, 132, 134), under the facts of this case we do not think the instructions excepted to misled the jury, in that they were contradictory. 1 Reid's Branson Instructions to Juries, 387(71), § 138.

3. The general grounds are not mentioned or argued by the plaintiff in error, and are treated as abandoned.

Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.

Walter C. Huff was convicted of recklessly driving an automobile, and he brings error.

Affirmed.

James R. Venable and Frank A. Bowers, both of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., Bond Almand, Sol., Durwood T. Pye, and Lindley W. Camp, Sol., all of Atlanta, for defendant in error.

MacINTYRE, Judge.

1. In a trial for recklessly driving an automobile the court did not err in allowing a witness, Paschall, to testify: "The boys had been drinking but they were not drunk. I did not say that they were under the influence of liquor, " over the objection that this was placing the defendant's character in issue, that the testimony was irrelevant in that the defendant was not charged with driving an automobile while intoxicated, but was charged (a) with driving at an excessive rate of speed, and (b) in a reckless manner. We think the testimony was competent, as bearing on the issue of reckless driving, to prove all the circumstances at the time of the alleged criminal act, including the condition, movements, and the conduct of the defendant. The defendant's condition, together with his movements and conduct at the time of the alleged criminal act, was a circumstance of such a character, which, when taken in connection with other circumstances according to the common course of events, tended to establish the truth of the matter in issue and was relevant. There was other evidence that the car "zigzagged" from one side of the street to the other, and at times went eighty-five miles per hour. The evidence was not subject to the objection that it came within the rule that the State can not attack the defendant's character unless, or until, he first puts it in issue. The exception is not meritorious.

2. Walter C. Huff was charged in an accusation on two counts, the first for operating an automobile on a public highway at a rate of speed exceeding fifty-five miles per hour in violation of Code, § 68-301, a misdemeanor, and the second for operating an automobile on a public highway "in such a manner as to be in wilful or wanton disregard of the safety of persons or property,...