Jordan v. State, 19276

• Decision Date: 09 April 1956
• Docket Number: No. 19276,19276
• Citation: 92 S.E.2d 528,212 Ga. 337
• Parties: Johnnie H. JORDAN v. The STATE.
• Court: Georgia Supreme Court

Page 528

92 S.E.2d 528

212 Ga. 337

Johnnie H. JORDAN v. The STATE.

No. 19276.

Supreme Court of Georgia.

April 9, 1956.

Syllabus by the Court.

1. There was no variation in the allegations of the accusation and the testimony in the case.

2. The defendant was not harmed by the extract from the charge assigned as error.

3. The refusal of the trial judge to declare a mistrial because of an improper comment by the solicitor on the defendant's failure to make a statement in his own behalf will not be reversed by this court 'where it appears that the judge immediately and at length instructed the jury to the effect that a defendant is not required to make a statement unless he sees fit to do so, that the argument of the prosecuting attorney was improper and should not be considered, and that the fact that a defendant does not make a statement should not be considered by them in passing upon the case.' Thornton v. State, 190 Ga. 783, 10 S.E.2d 746, 747, and cases cited.

4. The refusal to direct a verdict of not guilty is never ground for a new trial.

The accusation against Johnnie H. Jordan in the City Court of Oglethorpe, Macon County, charged him with the offense of driving and operating 'a certain motor vehicle over and upon that certain public highway, in said county, known as State Route No. 49, while the accused was under the influence of intoxicating liquors or drugs.' The offense was alleged to have been committed on June 12, 1955.

The evidence of the State in regard to the commission of the offense was by the testimony of State Patrolman Loggins, and the part of the testimony in regard to the place of the offense was as follows: 'I saw him [the defendant] on or about 12th day of June, 1955 between here and the river bridge on Georgia Highway No. 26; that is Highway 49 and 26--I believe it is Georgia 90 too. Trooper Johnson and I were patrolling that afternoon in this county and we were in Oglethorpe at the time we noticed this car coming down this street--I believe it is known as Macon Street coming down by the lumber yard that intersects with Georgia 26. I was driving and I noticed that this person did not stop at the stop sign--he failed to stop there. The stop sign is out at this street where you come out in Georgia 26, Macon Street I believe it is known as. I refer to that street that goes by the sawmill up there that joins State Route 49. He failed to stop there and turned in the direction of Montezuma, and I turned around and followed him, * * *. This happened in Macon County, Georgia, * * * . Trooper Johnson and I went riding on 49, I believe we were headed south. When I saw him I was south of the intersection. I have a rear view mirror that I use for that purpose.'

The jury returned a verdict finding the defendant guilty of operating a motor vehicle under the influence of intoxicants. He filed his motion for new trial, on the general grounds, which was later amended by the addition of four special grounds. The exception is to the denial of the motion for new trial as amended.

A. C. Felton, III, Montezuma, for plaintiff in error.

Wm. T. Roberts, Montezuma, for defendant in error.

HEAD, Justice.

1. It is contended by the defendant that there is a fatal variance in the allegata and probata, in that the accusation charged the defendant with operating a motor vehicle under the influence of intoxicants on a public highway, known as State Route 49, and there was no proof that the highway on which the alleged offense was committed was a public highway.

'Allegations in an indictment, wholly foreign to any element in the offense charged, may be disregarded as surplusage, and need not be proved. The rule is otherwise as to averments which are descriptive of some element in the offense, though more precise and detailed than is absolutely necessary.' Shrouder v. State, 121 Ga. 615, 49 S.E. 702; Hall v. State, 120 Ga. 142, 47 S.E. 519; Brand v. State, 153 Ga. 639, 112 S.E. 829; Robinson v. State, 76 Ga.App. 313, 45 S.E.2d 717; Waller v. State, 80 Ga.App. 488, 56 S.E.2d 491. 'If the criminality of an act depends upon the place where it is committed, the allegation of place is material; and variance between the allegation and the proof is fatal.' Johnson v. State, 1 Ga.App. 195, 58 S.E. 265; Isenhower v. State, 88 Ga.App. 726, 77 S.E.2d 843; Baker v. State, 92 Ga.App. 60, 87 S.E.2d 644.

Under the present law, the offense of driving a vehicle under the influence of intoxicants may be committed 'upon highways and elsewhere throughout the State.' Ga.L.1953, Nov.-Dec. Sess. p. 564, Code Ann.Supp. § 68-1601. The definition of 'highway' given in the law shows that it means a 'way publicly maintained'. Ga.L.1953, Nov.-Dec. Sess. p. 561, Code Ann.Supp. § 68-1504(a). Therefore this offense may now be committed upon a public highway or at other places. Since, however, a public highway is one of the places where the offense may be committed, if the indictment or...