Marshall v. State

• Decision Date: 06 November 1943
• Docket Number: 30220.
• Citation: Marshall v. State, 70 Ga.App. 106, 27 S.E.2d 702 (Ga. App. 1943)
• Parties: MARSHALL v. STATE.
• Court: Georgia Court of Appeals

27 S.E.2d 702

70 Ga.App. 106

MARSHALL v. STATE.

No. 30220.

Court of Appeals of Georgia, Division No. 1.

November 6, 1943

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

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

GARDNER Judge.

The defendant was convicted on two counts charging public drunkenness under the Code, § 58-608.The first count charged her with public drunkenness caused by the excessive use of intoxicating liquor, which was made manifest by boisterousness and indecent condition and acting on "Memorial Drive, a public highway of said State and county."The second count specifies the same offense but on a different occasion and street, to wit, "on Pryor Street, a public highway of said State and county."The defendant carried her case by certiorari to the superior court.On the hearing there the court overruled and dismissed the certiorari.The assignment of error is that the evidence does not support the indictment, and a conviction is therefore unauthorized under the controlling statute.

As to count 1, the evidence reveals that the officers had a call regarding some kind of disturbance at Frank Azar's, off Memorial Drive, known as "E & B Soda Company, corner Central Avenue."The defendant was arrested in Frank Azar's place on Central Avenue and while under arrest was carried to Memorial Drive.While in the custody of the officers on Memorial Drive she committed the acts of public drunkenness as alleged in the indictment.It does not appear how far from Memorial Drive the arrest was made.The arrest under this count was made in the early evening.On the same evening, about 12 o'clock the defendant was arrested on the inside of "Mack's Drive-In" about 75 feet off Pryor Street, and taken to Pryor Street, where the alleged offense charged in count 2 of the indictment was committed.

This court has held that, "A conviction of being intoxicated upon a public highway is not supported by proof that the defendant was intoxicated at a store within 15 or 30 feet of the public road."Hutchinson v State,8 Ga.App. 684(2), 70 S.E. 63.Also, that "An accusation of drunkenness in a designated public place cannot be established by proof that the accused, while in an intoxicated condition, was involuntarily and forcibly carried to that place by the arresting officer, no matter what the proof may be...