Spence v. State, 33344
| Decision Date | 26 January 1951 |
| Docket Number | No. 2,No. 33344,33344,2 |
| Citation | 63 S.E.2d 910,83 Ga.App. 588 |
| Parties | SPENCE v. STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
On the issue of intoxication, it is proper either for the witness to state the facts upon which he based his opinion that the accused was under the influence of liquor, or, when he has had suitable opportunity for observation, to state whether or not the person was intoxicated and the extent thereof.
The defendant, George Spence, was tried in the City Court of Swainsboro on an accusation brought in two counts and charging him in count one with a violation of Code Ann. Supp. 68-307, driving a motor vehicle while under the influence of intoxicating liquors, and in count two with a violation of Code § 68-308, leaving the scene of an accident and refusing to give his name and address to another person present upon request of that person. The case was tried before a jury and the defendant convicted on count 1 and acquitted on count 2. A motion for a new trial on the general grounds was filed and overruled, and this judgment is assigned as error.
H. Alonzo Woods, Swainsboro, for plaintiff in error.
Darius N. Brown, Sol., Swainsboro, for defendant in error.
As to the charge of drunken driving, the prosecutor's testimony was as follows: 'When he came back up there I had a chance to observe his condition with reference to being under the influence of alcohol; he was in no state to drive a car.' Another witness for the state testified, It is held in Durham v. State, 166 Ga. 561(3), 144 S.E. 109, that the opinion of a witness who had, and was able to inprove, suitable opportunities for observation may state whether a person was intoxicated or that he appeared to be drinking.
The testimony of the prosecutor is not of itself sufficient to sustain a conviction of operating an automobile while under the influence of liquor. It was sufficient to show that he was driving the automobile, but on the question of whether or not he was under the influence of alcohold his testimony was that he had an opportunity to observe his condition in this respect and that it was such that he was in no state to drive a car. However, he failed to say that he was...
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