Townsend v. State, 47424

• Decision Date: 22 November 1972
• Docket Number: No. 3,No. 47424,47424,3
• Parties: Charles E. TOWNSEND v. The STATE
• Court: Georgia Court of Appeals

Page 474

195 S.E.2d 474

127 Ga.App. 797

Charles E. TOWNSEND v. The STATE.

No. 47424.

Court of Appeals of Georgia, Division No. 3.

Nov. 22, 1972.

Rehearing Denied Dec. 20, 1972.

Hudson & Montgomery, Jim Hudson, Athens, for appellant.

Clete D. Johnson, Dist. Atty., Royston, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

This appeal is from an involuntary manslaughter conviction based upon an indictment charging defendant with the commission of two unlawful acts, namely (1) driving under the influence of intoxicants or drugs and (2) driving on the wrong side of the road.

Defendant truck driver was driving on Highway 29 north of Athens en route from Birmingham, Alabama, to Washington, Georgia, when his tractor-trailer collided with a car in which the victim was a passenger who was killed in the wreck. There were no surviving eyewitnesses. Defendant's tractor-trailer was headed south and the car was approaching from the opposite direction. Both vehicles ended up off the highway on the north-bound lane side, which was the wrong side for the defendant's vehicle. Gouge marks in the pavement indicated the point of impact to be 7 feet 7 inches from the centerline and in the decedent's traffic lane. The first passer-by to stop helped defendant out of the truck and noticed defendant staggered. The passer-by did not smell alcohol on defendant's breath but found a half-empty whiskey bottle on the cab's floor-board. He also saw defendant remove a bottle of pills and throw it into the woods. The passer-by retrieved the bottle of pills (which upon later analysis by the State Crime Lab proved to be amphetamines). He gave both the pill and whiskey bottles to the police upon their arrival. During the interval of about 10 minutes while the officer was at the automobile containing the deceased, defendant disappeared. Approximately four to four and one-half hours later defendant reappeared at the accident scene, at which time the officer arresting him smelled alcohol on defendant's breath and observed him to be walking in a stagger. Appellant's activities during the interim were never accounted for although one of the investigating officers speculated that 'maybe he was in a daze or something and wandered off.' The blood alcohol test taken more than four hours after the collision showed the presence of ethyl alcohol in defendant's system of 0.12 gram percent.

Defendant denied drinking or taking pills either before or after the accident. Held:

1. Defendant contends that since there was no direct proof showing him to have been intoxicated or on the wrong side of the road at the time of the accident and that the lapse of more than four hours between his operation of the truck and his observed intoxication with the evidence being mainly circumstantial, the evidence is insufficient to show the defendant's guilt to the exclusion of every other reasonable hypothesis. Defendant cites in support of his contention Painter v. State, 101 Ga.App. 21, 112 S.E.2d 704; Williams v. State, 96 Ga.App. 833, 101 S.E.2d 747; Gunder v. State, 95 Ga.App. 176, 97 S.E.2d 381; and Waters v. State, 90 Ga.App. 329, 83 S.E.2d 25.

These cases and others of like tenor were expressly disapproved by this court in the recent case of Stephens v. State, 127 Ga.App. 416, 193 S.E.2d 870, an opinion rendered after this appeal was docketed. Our court there held in Headnote 2 that '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' and in Headnote 4 that 'The corpus delicti may be shown by circumstantial evidence as well as by direct evidence.'

2. What are the rules by which the circumstantial evidence is to be measured in order to meet the requirements of Code § 38-109 so as 'not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused'?

The jury determines if there is sufficient evidence, direct or circumstantial, to require a verdict of guilty. 'Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused, is primarly a question for determination by the jury. This of necessity is so, for we have no legal yardstick by which we can ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of twelve upright and intelligent jurors.' Smith v. State, 56 Ga.App. 384, 387, 192 S.E. 647, 648 as quoted with approval in Townsend v. State, 115 Ga.App. 529, 531, 154 S.E.2d 788 and in Johnson v. State, 126 Ga.App. 93, 96, 189 S.E.2d 900.

'In making a determination of whether any other reasonable hypothesis exists, the defendant's explanation must be taken into consideration insofar as it is consistent with the circumstantial evidence properly admitted.' Elam v. State, 125 Ga.App. 427, 430, 187 S.E.2d 920, 922. In accord, Redwine v. State, 207 Ga. 318, 324, 61 S.E.2d 481; Sentell v. State, 227 Ga. 153, 179 S.E.2d 234; Busbee v. Battle, 122 Ga.App. 450, 177 S.E.2d 500. 'It is not necessary however, in order to sustain a verdict of conviction, that the evidence exclude every possibility or every inference that may be drawn from the proved facts, but only necessary to exclude reasonable inferences and reasonable hypotheses. Wrisper v. State, 193 Ga. 157, 164, 17 S.E.2d 714, and cases there cited.' Dunson v. State, 202 Ga. 515, 521, 43 S.E.2d 504, 508.

'All that the law requires is that the evidence be such as to justify the inference, beyond a reasonable doubt, that the . . . act has been committed.' Johnson v. State, 119 Ga. 446, 447, 46 S.E. 634. In the instant case, defendant admits driving the truck and the collision, with sufficient circumstantial evidence for the jury to determine that the defendant was driving on the wrong side of the road and while intoxicated. 'The evidence is consistent with his guilt and inconsistent with his innocence.' Vinson v. State, 120 Ga.App. 425, 426, 170 S.E.2d 749, 750.

'After the verdict, the testimony is construed in its most favorable light to the prevailing party, which is in this case, the State, for every presumption and inference is in favor of the verdict. Bell v. State, 21 Ga.App. 788, 95 S.E. 270.' Wren v. State, 57 Ga.App. 641, 644, 196 S.E. 146, 148. This rule has been applied where the evidence is circumstantial. Wren v. State, supra p. 642, 196 S.E. 146; Hudgins v. State, 125 Ga.App. 576, 578, 188 S.E.2d 430.

This Court of Appeals in Stephens v. State, supra, has expressly disapproved the Waters, Ray (Ray v. State, 91 Ga.App. 16, 84 S.E.2d 591), and Gunder cases relied upon by defendant and on which Williams v. State, 96 Ga.App. 833, 101 S.E.2d 747 was bottomed. Therefore, we hold Williams is also disavowed by the Stephens decision insofar as it held that the corpusdelicti cannot be shown by circumstantial evidence.

3. The trial court properly instructed the jury that Code Ann. § 68-1625 was applicable to the facts of this case as there was sufficient evidence upon which the jury could find that the defendant was driving while intoxicated. Enumeration No. 7 is accordingly without merit.

4. Enumerations numbers 2 and 6 attacked the admissibility of the analysis of the defendant's blood alcohol test and of the policeman's testimony that he smelled an alcoholic beverage on defendant's breath because these events occurred more than four hours after the collision. The defendant's blood alcohol test revealed 0.12 grams percent alcohol in defendant's blood at that time. Code Ann. § 68-1625(b)(3) provides that 0.10 grams percent alcohol or more gives rise to a presumption of intoxication. An expert testified that the percentage of alcohol in the blood decreased at the rate of .01 to .02 grams percent per hour (T. 43). Such circumstances, though they occurred approximately 4 hours after the accident, are relevant. 'Any evidence is relevant which logically tends to prove or to disprove a material fact which is at issue in the case. . . .' McNabb v. State, 70 Ga.App. 798, 799, 29 S.E.2d 643, 644. In accord, Bond v. State, 104 Ga.App. 627(3), 122 S.E.2d 310. 'Where testimony tends to illustrate an issue or to aid in arriving at truth, it should not be rejected, though alone it may appear to be irrelevant.' Curtis v. State, 102 Ga.App. 790, 795, 118 S.E.2d 264, 269. In accord, Stone v. State, 118 Ga. 705(7), 45 S.E. 630. 'The question as to the admissibility of evidence is not to be determined by its weight.' Fuller v. State, 196 Ga. 237(2), 26 S.E.2d 281. In accord, Central of Georgia Railway Co. v. Brower, 106 Ga.App. 340, 344, 127 S.E.2d 33.

In 1886 our Supreme Court in Gilmer v. City of Atlanta, 77 Ga. 688, in headnote 1(a) recognized the trend at that date to be 'In cases of doubt as to the admissibility of evidence, the current of authority in this State is to admit it and leave its weight and effect to be determined by the jury.' Eighty-one years later, in 1967, our court in Atlantic C.L.R. Co. v. Blount, 116 Ga.App. 86(2), 156 S.E.2d 409 adopted this propensity towards enlargement when in doubt of admissibility of evidence as being the expression of a 'realistic view' in quoting from page 90, 156 S.E.2d page 411 of the earlier decision as follows: "The current of opinion in this State by this court is, that what sheds light on the truth of the transaction should go to the jury; that the doors should be open rather than shut to testimony; and that, in doubtful cases, the doors should always open, letting the jury pass upon the effect and weight to be given to such evidence." Today, we continue to regard this wise directive to be sound policy and good law.

There was no error in the admission of this evidence.

5. Enumerations of error 3, 4, and 5 dealt with the admission of the bottle of whiskey and the bottle of pills. These were part of the res...