Stephens v. State, 47286

• Citation: 193 S.E.2d 870,127 Ga.App. 416
• Decision Date: 25 October 1972
• Docket Number: 3,No. 47286,Nos. 1,2,47286,s. 1
• Parties: Douglas M. STEPHENS v. The STATE
• Court: Georgia Court of Appeals

Page 870

193 S.E.2d 870

127 Ga.App. 416

Douglas M. STEPHENS v. The STATE.

No. 47286.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Oct. 25, 1972.

Syllabus by the Court

1. An admission, incriminating in nature but not rising to the status of a confession of guilt, is nevertheless circumstantial evidence which the jury may consider in determining the matter of guilt or innocence. It is to be received cautiously and scanned with care, but, together with other evidence may, and often does, justify a conviction.

2. A conviction of driving a motor vehicle on the public highway while under the influence of drugs or intoxicants may rest upon circumstantial evidence where it is sufficient to exclude every reasonable hypothesis save that of guilt.

3. An admission by the defendant that he had been alone in his car was corroborated by circumstantial evidence.

4. The corpus delicti may be shown by circumstantial evidence as well as by direct evidence.

5. Conflicting cases are disapproved.

Douglas M. Stephens was convicted of the offense of operating an automobile on the public highway while under the influence of intoxicants. On the trial of his case the evidence developed that at about 2:30 a.m. two employees of a nearby highway restaurant, while on the way home from work, saw a man attempting to climb out of a ditch, up an embankment, into the road. 'When we first saw him he had just made the bank but he slid back down . . . He was half his body in the highway but he wasn't completely in the highway.' At first they suspected that he might have met with foul play, but it developed that he was crawling up from an automobile that had left the highway, hit a tree and a large sewer pipe. An ambulance and the State Patrol were called. The ambulance first arrived and took the man to a Canton hospital, and shortly afterward the patrol came up. No one else was seen in or about the car. The lights were on, and exit from the car was possible only through the left door, on the driver's side-the other could not be opened. The man was groaning. He made no statement to the people who thus came upon him.

The State Patrol officers went to the hospital, where the accused was found and, some 45 minutes after he had been discovered on the highway, had a doctor procure from his vein a blood sample which, on analysis in the State Crime Laboratory, revealed that it had a percentage of alcohol by weight of .19. There was expert testimony that alcohol in the human body is destroyed at the rate of .02 percent per hour. Attendants at the hospital testified that nothing had been administered to him prior to the taking of his blood sample. At his request he was transferred to Kennestone Hospital in Marietta.

The State Patrol officers who saw and talked with the defendant at the hospital (in Canton) asserted that he was under the influence of intoxicants to the extent of being drunk, and that it had been less safe for him to drive a motor vehicle. He admitted to them that he had been alone in the car, but asserted that he just didn't know what happened.

In his unsworn statement the defendant stated that he had gone out to get something to eat about 10 p.m., had met up with a friend at the Burger King and they got together and started riding around. The friend wanted to drive the car, because he had never driven a Volkswagen, and he allowed it. It was foggy and rainy. They rode through Canton and out onto the highway. As he recalled it a front tire blew out and he remembered nothing further until he awakened in Kennestone Hospital at Marietta, where he had been taken from Canton; he was given fluids at Kennestone, and later released the same night.

Doyle C. Brown, Marietta, for appellant.

C. B. Holcomb, Dist. Atty., B. B. Robertson, Canton, for appellee.

EBERHARDT, Presiding Judge.

1. The contention that the defendant's admission to the State Patrol officer that he had been alone in his car on the occasion when it left the road, struck a tree and turned over was an uncorroborated confession, is without merit.

In the first place it was an admission only, albeit incriminating in nature, and not a confession of guilt. It was an admission that he had operated the automobile, but it did not include a confession that he had done so while under the influence of intoxicants. 'A confession is a voluntary admission of guilt; . . . an admission, as applied to criminal cases, is the avowal or acknowledgement of a fact or of circumstances from which guilt may be inferred, and only tending to prove the offense charged, but not amounting to a confession of guilt.' Riley v. State, 1 Ga.App. 651(3), 57 S.E. 1031. A confession is direct evidence of guilt, while an admission is circumstantial. An admission is to be scanned with care, but it is evidence which, with other evidence, may and often does justify a conviction.

If he was alone, as he admitted to the officer, the jury was authorized to conclude that he was in charge of and was operating the automobile when it ran off the highway. True enough, in his unsworn statement he asserted that a friend (without naming him) had been in the car 'riding around' with him and that he had allowed the friend to drive the car. The jury was authorized to determine whether they would accept the admission made to the officer or the assertion in his unsworn statement. They were authorized, in doing so, to consider the other matters in evidence, such as the fact that when the defendant was discovered on the road, late at night, he was alone, trying to get from his car up a ditch bank to the road, the lights on the car were burning; no other person was seen about the car or leaving the scene. Weighing all of the evidence, the jury concluded, as they were authorized to do, that the defendant had, in fact, been alone and had operated the car on the highway.

2. This left only one matter for resolution, and that was whether, at the time, he had been under the influence of intoxicants. There was ample circumstantial evidence that he had been. He was carried from the scene of the accident directly to the hospital in an ambulance, where he was seen by a registered nurse and a doctor. Nothing was administered to him and a blood sample was taken which, when analyzed, revealed that upon arrival at the hospital he had an alcoholic content in the blood of .19 percent, which was nearly double the minimum specified by Ga.L.1968, p. 448 (Code Ann. § 68-1625) for raising a presumption of intoxication. The blood sample was taken approximately an hour after the accident on the road had apparently occurred and the expert testimony was that alcohol in the human body is destroyed at the rate of .02 percent per hour. The circumstances here were sufficient to authorize the jury to conclude that the defendant had ingested the alcohol prior to the accident (there was nothing to indicate that he had done so afterward), and thus that the content at the time of the accident had been greater than when the blood sample was taken. The State Patrol officer who saw and talked with defendant at the Canton hospital some 45 minutes after the accident asserted that his tongue was thick, his speech slurred, and that he was drunk, so that it had been less safe for him to operate his car on the road.

The jury was authorized to consider the fact that the car had been driven off the road, down an embankment into a tree, that he was 'drunk' when seen at the hospital, the high alcoholic content of his blood as shown by the blood sample, and the rate of its destruction in the body, as circumstances indicating his intoxication at the time of his operation of the car on the road.

It is worthy of note that in his unsworn statement the defendant did not deny that he had been intoxicated. He made no reference to it. He did assert that his unnamed friend had driven the car, but, as we have observed, he admitted to the officer at the hospital that he had, in fact, been alone.

There was ample evidence, both direct and circumstantial, to justify the conviction.

3. If we assume the admission to the officder that he had been alone in the operation of the car to occupy a status on a plane with that of a confession of guilt (which it does not), it was not uncorroborated.

The same evidence and circumstances which we have enumerated above are ample for its corroboration, and we deem it unnecessary to repeat them here.

It is true that 'A confession alone uncorroborated by other evidence, will not justify a conviction, but a confession which is corroborated may be considered along with other evidence to justify the conviction even if it be necessary in establishing the corpus delicti. Code § 38-420; Logue v. State, 198 Ga. 672, 32 S.E.2d 397; Gilder v. State, 219 Ga. 495, 133 S.E.2d 861.' Thompkins v. State, 222 Ga. 420(1), 151 S.E.2d 153. This principle has been recognized and applied by the Supreme Court even in connection with the grave charge of murder. Holsenbake v. State, 45 Ga. 43(5); Wilburn v. State, 141 Ga. 510(10), 81 S.E. 444; Buckhanon v. State, 151 Ga. 827, 833, 108 S.E. 209; Coggeshall v. State, 161 Ga. 259, 266(6), 131 S.E. 57; Grimes v. State, 204 Ga. 854, 860, 51 S.E.2d 797.

4. That the corpus delicti can be shown by circumstantial evidence, as well as by direct evidence, is well settled. Garnett v. State, 10 Ga.App. 109(4), 72 S.E. 951; Sutton v. State, 17 Ga.App. 713(1), 88 S.E. 587; Buckhanon v. State, 151 Ga. 827(8b), 108 S.E. 209, supra. 'The Holsenbake, Wilburn and Logue cases clearly hold that Code § 38-420 does not fix the amount of evidence necessary to corroborate a confession but leaves the question of its corroborative sufficiency entirely with the jury and those cases also plainly hold that the jury may consider the confession along with other facts and circumstances independent of and separate from it in determining whether or not the corpus delicti has been established to their satisfaction.' Gilder v. State, 219 Ga. 495,...