Tutt v. State

• Decision Date: 15 March 1973
• Docket Number: No. 47635,2,Nos. 1,3,47635,s. 1
• Parties: Racy H. TUTT v. The STATE
• Court: Georgia Court of Appeals

Page 432

197 S.E.2d 432

128 Ga.App. 636

Racy H. TUTT v. The STATE.

No. 47635.

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

March 15, 1973.

Rehearing Denied March 30, 1973.

Lawson E. Thompson, Washington, for appellant.

Kenneth E. Goolsby, Dist. Atty., Thomson, for appellee.

Syllabus Opinion by the Court

STOLZ, Judge.

The defendant was tried and convicted on an indictment charging him with operating a motor vehicle while under the influence of intoxicants. A motion for new trial, on the general grounds only, was filed, heard, and overruled. The defendant appeals from the judgment and sentence and the overruling of the motion for new trial. Held:

While the evidence did not demand finding the defendant guilty of driving under the influence, it was sufficient to authorize his conviction.

The testimony of the state's witness, Georgia State Patrolman Jerry Walker, showed that the defendant admitted to the officer that he was driving an automobile involved in an accident; that the officer observed the defendant at the scene of the accident; that in the officer's opinion the defendant was under the influence of intoxicating liquors when observed by the officer at the scene of the accident; that the officer was notified of the accident at 9:43 p.m. and arrived at the scene at 9:50 p.m.; and that, in the officer's opinion, the accident occurred at 9:30 p.m. The officer further testified that he gave the defendant a breath test to determine the alcohol content of the defendant's blood at 10:45 p.m., which showed an alcohol content in the defendant's blood in excess of .10% and that, in the officer's opinion, the defendant's blood alcohol content was approximately .15% at the time of the wreck. The officer testified that the defendant did not drink anything after the officer's arrival at the scene of the accident and that the alcohol content in blood drops at a rate of 2 points per hour. The case falls squarely within the principles enunciated by this court in Stephens v. State, 127 Ga.App. 416, 193 S.E.2d 870.

The trial judge did not err in entering a judgment on the verdict.

Judgment affirmed.

BELL, C.J., HALL, P.J., and PANEBERHARDT, P.J., and DEEN, J., cur.

EBERHARDT, P.J., and DEEN, J., concur specially.

EVANS, J., dissents.

EBERHARDT, Presiding Judge, concurring.

I fully agree that the recent full bench case of Stephens v. State, 127 Ga.App. 416, 193 S.E.2d 870, with all judges concurring, is a sufficient basis for affirming here. In it we held that a DUI conviction might rest upon circumstantial evidence, and we disapproved a number of cases wherein the ruling was, or substantially indicated, that direct evidence would have to be produced showing that the defendant was under the influence of intoxicants at the time of his driving the vehicle on the highway.

A careful reading of Stephens will reveal that we did not go as far as my Brother Deen suggests. We did not 'shift the burden of proof to the defendant.' We simply said that where there was circumstantial evidence indicating that the defendant had been under the influence of intoxicants when driving the vehicle, it was for the jury to say whether the evidence was sufficient to exclude all other reasonable hypotheses and justify a conviction, and that if the jury so found we should not disturb it.

We made no new law in Stephens; we simply applied the long recognized and well-settled principle that conviction on a criminal charge (even DUI) may rest upon circumstantial evidence, and disapproved dicta in some cases which had brought confusion to the bench and the bar. We cited a number of cases in which the true rule had been recognized and applied, some of which were older than those in which dicta was disapproved and some of later vintage. See citations at p. 425, 193 S.E.2d 870. And see Townsend v. State, 127 Ga.App. 797, 195 S.E.2d 474.

In the case here the defendant struck an 'object' (conceded in appellant's brief to have been a man, who was mortally wounded) on the highway. The state patrol received information as to the matter at 9:43 p.m. and Trooper Walker went immediately to the scene, arriving at 9:50 p.m. He found the defendant at the scene, intoxicated. He admitted to the trooper that he had driven the car involved in the accident. His eyes were glassy, he walked on unsteady feet, his speech was slurred and there was an odor of alcohol on his breath. He was given the alcolyzer test, as authorized under Ga.L.1953, Nov. Sess., pp. 556, 575; 1966, pp. 70, 71; 1968, pp. 448, 449, 452 (Code Ann. §§ 68-1625, 68-1625.1), and the result showed that he had in excess of .10 per cent of alcohol in his blood. The test was not given until 10:45 p.m., and thus, as the patrolman testified, the alcoholic content had been at a higher level when he first arrived at the scene than when he later administerd the test. The defendant had had nothing to drink from the time the patrolman first saw him. The content as indicated by the test disclosed that defendant was intoxicated. Ga.L.1968, pp. 448, 449 (Code Ann. § 68-1625).

The trooper did not know exactly when the accident had occurred, but testified that it was his opinion that it had been at 9:30 p.m. He was not asked what facts he based his opinion on, and there was no objection to the testimony. He had qualified as an expert in the investigation of motor vehicle accidents on the highway, and was testifying as such, and under Code § 38-1710 the evidence was admissible. He did say that the accident could have occurred an hour or more prior to his arriving at the scene, but that was not his opinion. It was a mere possibility.

The defendant made an unsworn statement as follows: 'Well, all I have to say is that I'm sorry about the accident, but I wasn't drunk.'

The jury was authorized to conclude from all of this evidence, including the defendant's unsworn statement, that the defendant had been under the influence when he was driving the vehicle. As Judge Evans asserted in Vinson v. State, 120 Ga.App. 425, 170 S.E.2d 749, 'While the circumstantial evidence connecting the accused with the crime, in order to support a conviction, must exclude every reasonable hypothesis except the guilt of the accused, yet it need not remove every possibility of his innocence. John v. State, 33 Ga. 257, 268; Graves v. State, 71 Ga.App. 96, 99, 30 S.E.2d 212; Eason v. State, 217 Ga. 831, 125 S.E.2d 488.' See also Norman v. State, 121 Ga.App. 753, 757, 175 S.E.2d 119 and cits.

The evidence here is perfectly consistent with the defendant's guilt. The accident occurred out in the country, and the defendant remained at the scene until the patrol arrived. While there may be a possibility that he could have consumed enough alcoholic beverage between the time of the accident and the arrival of the patrol to become intoxicated, that does not appear to be a reasonable inference from this evidence. It does not appear that any alcoholic beverage was available, and the defendant certainly makes no claim of it.

I agree that the verdict is amply supported by the evidence.

DEEN, Judge (concurring specially).

I agree that this case falls within, and must therefore be controlled by, the principles enunciated in Stephens v. State, 127 Ga.App. 416, 193 S.E.2d 870. Stephens overruled a long line of cases dealing with the quantum of circumstantial evidence necessary to 'exclude every other reasonable hypothesis' in cases where the defendant's conviction for drunk driving rests on circumstantial evidence only and where, although the evidence demands a finding that he is intoxicated at some undetermined period of time after a wreck there is no evidence either way to show whether he was intoxicated before or at the time of the wreck. Waters v. State, 90 Ga.App. 329, 83 S.E.2d 25 is a case in point where it was held that the evidence 'does not, when considered in connection with . . . the absence of any evidence negativing the possibility of his having drunk the liquor during the time he was absent from the car (after the accident), exclude every reasonable hypothesis save that of the guilt of the accused.'

Waters was overruled in Stephens, and Stephens specifically holds that the circumstances '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).' In other words, the prior rule in this state was that where, on a charge of drunk driving, a period of time elapsed between the time the defendant ceased driving and the time he was apprehended, the burden was on the state to show the defendant was drunk, not only when apprehended, but also at the time he was driving. This meant placing some burden on the state to negative the possibility of his having drunk sufficient liquor to intoxicate him after he ceased driving and before he was apprehended. Judge Evans' dissenting opinion is immanently correct under this rule. But Stephens has placed the burden on the defendant to show that his intoxication occurred after the wreck and not before. Proof that the defendant was intoxicated when arrested raises no presumption that he was intoxicated an unknown period of time prior thereto. 'Although the rule of evidence is well established that a status once proved to exist continues until there is proof of a change or adequate cause for assuming there has been a change (cits.), there is, however, no presumption that a present proven status existed in the past.' McCluskey v. American Oil Co., 224 Ga. 253, 254, 161 S.E.2d 271. Upon reflection (although I concurred in Stephens at the time) I consider the old rule, in a case depending entirely on circumstantial evidence, to be the sounder requirement in order to exclude every reasonable hypothesis save that of guilt. But I recognize it is no longer the law, and accordingly concur in the judgment of affirmance.

EVANS, Judge (dissenting).

The defendant was tried and...