Williams v. State, 41040

• Decision Date: 07 April 1965
• Docket Number: No. 2,No. 41040,41040,2
• Citation: 142 S.E.2d 409,111 Ga.App. 588
• Parties: Curtis R. WILLIAMS v. The STATE
• Court: Georgia Court of Appeals

Page 409

142 S.E.2d 409

111 Ga.App. 588

Curtis R. WILLIAMS v. The STATE.

No. 41040.

Court of Appeals of Georgia, Division No. 2.

April 7, 1965.

Rehearing Denied April 22, 1965.

Syllabus by the Court

1. While operating a motor vehicle on the public roads by one who is under the influence of intoxicating beverages is, under some circumstances, a separate offense from driving under the influence of intoxicants, yet the driving of a vehicle necessarily includes the operating of it. Thus, where a warrant charged that the defendant was driving the vehicle, and the accusation based thereon charged that he was driving and operating it, there is no fatal variance.

2. Though a defendant has a right under Code Ann. § 38-415 to make an unsworn statement without being subjected to cross-examination, he does not, as a matter of law, have the right to have his counsel interrogate him or to make suggestions to him in connection therewith. The requirement that he be afforded assistance of counsel while making his statement (Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783) was obviated by the amendment of §§ 38-415 and 38-416 (Ga.L.1962, pp. 133-135) by which he may elect to be sworn as a witness in his own behalf. Williams v. State, 220 Ga. 768 (141 S.E.2d 436).

C. R. Williams was arrested under a warrant charging him with the offense of driving a motor vehicle on U. S. Highway No. 19 in Sumter County while under the influence of an intoxicating beverage. He was convicted upon an accusation in the City Court of Americus based upon the warrant but charging that he did 'drive and operate a motor vehicle in said county while under the influence of intoxicating liquors.' He demurred to the accusation on the ground that it was broader than the warrant upon which it was based and that it broadened the scope of the offense with which he stood charged.

At the trial he elected to make an unsworn statement but sought to have his counsel interrogate him in doing so in the same manner as might be done of a witness. The court denied him that right unless he should elect to be sworn as a witness.

He was convicted, and excepts directly to the overruling of the demurrer and to the denial of the assistance of counsel in making his unsworn statement.

Claude N. Morris, Americus, for plaintiff in error.

Jack Murr, Sol., Americus, for defendant in error.

William T. Boyd, Sol. Gen., J. Walter LeCraw, Atlanta, amicus curiae.

EBERHARDT, Judge.

1. Where one is prosecuted in a city court upon an accusation, the accusation can not be broader than the affidavit nor the charge different from that described therein. Frazier v. State, 11 Ga.App. 261, 75 S.E. 10; Blake v. State, 112 Ga. 537, 37 S.E. 870.

It was held in Flournoy v. State, 106 Ga.App. 756, 128 S.E.2d 528, that the operation of a vehicle did not necessarily include the driving of it and might be accomplished by sitting therein on a public highway and, while in control and under the steering wheel, starting the motor, under which circumstance the 'operation' of the vehicle is a separate offense from the 'driving' of it (the statute being in the disjunctive, making it an offense to operate or drive a vehicle while under the influence of an intoxicant, Ga.L.1953, Nov.Sess., pp. 556, 575, Art. V, § 47) but we do not think that case requires a reversal.

It is obvious that one who drives a motor vehicle must, in that process, 'operate' it. It can not ordinarily be driven until the motor has been started, the gears enmeshed and control assumed at the steering wheel. It might otherwise be done on an incline or while being pushed or pulled by some means other than its own motive power. In Glass v. State, 119 Ga. 299, 46 S.E. 435, where the warrant charged 'gaming' and the accusation charged playing 'at a game of seven-up, skin and other games played with cards,' the court affirmed a conviction saying that while '[t]he accusation cannot be broader than the affidavit, but, as the greater includes the less, if the affidavit is general, the accusation can be specific.' Since driving a vehicle must include operating it, it follows that the accusation here was not broader than the warrant.

Just as '[t]he offense of having, controlling, and possessing spirituous liquors * * * could be committed without making a sale of the spirituous liquors; but the offense of selling, * * * could not be committed without having, controlling, or possessing,' Kuck v. State, 149 Ga. 191, 193, 99 S.E. 622, the offense of operating an automobile while under the influence of intoxicants can be committed without driving it, but the offense of driving while under the influence can not be committed without operating the car. In the same way that the offense of selling illicit liquor is broader than and includes the offense of possessing it, the offense of driving is broader than and includes the offense of operating. In both this is true when the charge relates to a single transaction or occasion. For example, a defendant may be charged in separate counts with possessing liquor on one occasion and with selling liquor on another, and if that is done he may be convicted on either or both counts without any inconsistency. Byrd v. State, 51 Ga.App....