Stewart v. State, 23750.

• Decision Date: 11 July 1934
• Docket Number: No. 23750.,23750.
• Citation: 49 Ga.App. 332,175 S.E. 485
• Parties: STEWART. v. STATE.
• Court: Georgia Court of Appeals

49 Ga.App. 332

175 S.E. 485

STEWART.

v.STATE.

No. 23750.

Court of Appeals of Georgia, Division No. 1.

July 11, 1934.

Syllabus by the Court.

1. The only witness for the state did not have adequate opportunity of observation or opportunities that were fully sufficient to enable him to state that the defendant was intoxicated.

2. The evidence did not authorize the verdict.

Error from Superior Court, Taliaferro County; C. J. Perryman, Judge.

Gentle Stewart was convicted of driving an automobile while intoxicated, and he brings error.

Reversed.

See also (Ga. App.) 171 S. E. 833.

J. A. Mitchell and P. H. Mitchell, both of Crawfordville, for plaintiff in error.

J. Cecil Davis, Sol. Gen., of Warrenton, for the State.

MacINTYRE, Judge.

The defendant was convicted for driving an automobile upon a named public highway in Crawfordville, Ga., "while under the influence of intoxicating liquor and while intoxicated." He moved for a new trial upon the general grounds only, the motion was overruled, and he excepted.

P. P. Rhodes, chief of police and the prosecutor, testified that about 10 o'clock on the morning of April 8, 1933, the defendant drove a motorcar upon a public highway within the corporate limits of Crawfordville, while in an intoxicated condition; that the car was "wobbling" in its course and turned off the street at a rapid rate of speed so that two wheels "left ground"; that the defendantcould not be caught until about 8 o'clock the ensuing night, when he was arrested with the aid of another officer; that the car contained no liquor; that defendant "smelled of alcoholic liquors when arrested, but did not show any indication otherwise of being intoxicated." The witness testified he was some 100 yards away when he saw defendant's car turn the corner, that the streets were crowded, but defendant collided with no vehicle.

G. F. Richards, the officer who assisted the chief of police and who was night chief, testified that he was on duty in the afternoon of the above date, and that about 2 o'clock of that afternoon the defendant drove up a street of the city and parked his car immediately opposite witness, got out, approached witness and asked for the loan of 50 cents, was not intoxicated at the time, and showed no sign of being so; that he saw defendant half a dozen times after that until 8 o'clock that night, but observed nothing to indicate defendant was intoxicated; that the chief of police did not tell witness he was arresting defendant for driving while intoxicated, but said only that he thought defendant was driving a liquor car and he wanted to search it; that defendant was not drunk or drinking when...