Opinion
37376.
DECIDED OCTOBER 16, 1958.
Driving under the influence of intoxicants. Athens City Court. Before Judge Oldham. July 11, 1958.
Guy B. Scott, Jr., for plaintiff in error.
Preston M. Almand, Solicitor, contra.
While the corpus delicti of the offense of driving while under the influence of intoxicants must be established aliunde the admissions of the accused, circumstantial evidence which excludes every other reasonable hypothesis save that of the guilt of the accused is sufficient for this purpose. The evidence was sufficient here to establish both that the defendant was the driver of the automobile in question and that he was intoxicated at the time.
DECIDED OCTOBER 16, 1958.
The defendant Cleveland Brown was tried and convicted in the City Court of Athens on a charge of driving while under the influence of intoxicants. There is ample evidence of Brown's intoxication and the only issue raised by the general grounds of the motion for new trial is whether there is sufficient evidence to support a finding that he was the driver of the automobile. Billy Wilson testified on direct examination: "Cleveland Brown was going west on this road and I was driving my tractor trailer rig going east. . . . I saw a man and woman in the car which was coming towards me and which hit me. . . I would say that the car was approximately two feet across the center line on my side of the road. . . After we sideswiped, I went on down the road to a place where I could stop. I got out of the cab and took my fuse rack and flashlight and lit the fuses so no one would hit my truck. I then walked back halfway between my truck and the car which hit me. It had not been over two minutes after the collision when I met Cleveland Brown walking towards my truck. I talked to Cleveland Brown on the roadway between my truck and his car." On cross-examination he testified: "I could not swear that Cleveland Brown was driving the car which hit me. I do not know of my own knowledge if he was driving. All I know is that I met Cleveland Brown halfway between my truck and his car some two minutes after the accident occurred. Cleveland Brown wanted to make a settlement of the damages at that time. . . He did want to know if I was going to pay him the damages to his automobile. He asked me if I was blinded by headlights and was unable to stay on my side of the road. . . I did not see Cleveland Brown get out of the car. . . [He] did not say he was driving but I surmised from what he said that he was driving." James Nix testified: "I saw Cleveland Brown in front of Betty's Truck Stop on the night this accident occurred. He was driving an automobile that had run into a tractor and trailer. I had been driving behind him for two miles. He and a woman were the two persons in the car in which he was driving. The man was driving. I tried to pass the defendant's automobile, but he was weaving back and forth on the road. I saw the defendant, Cleveland Brown, get out of his car from under the steering wheel after the accident had occurred. I saw the collision between the tractor and trailer and Cleveland Brown's automobile. . . . I did not get any closer to him than the length of the courtroom." On cross-examination he testified: "I could not swear it was Cleveland Brown who was driving the car, who got out of the car. All I know was that a man was driving the car and that a man got out of the car. I could not swear that the man who got out of the car and Cleveland Brown were one and the same man . . . A man and woman were in the car, and . . . a man got out of the car." Four officers arrived within 15 and 25 minutes respectively after the collision and made an investigation resulting in the arrest of defendant. They all testified as to the position of the vehicles and the intoxication of the defendant.
Upon conviction the defendant made a motion for new trial on the general grounds, the denial of which is here assigned as error.
While the corpus delicti of the offense must be proved aliunde the admissions of the accused ( Gunder v. State, 95 Ga. App. 176, 97 S.E.2d 381), it may nevertheless be established by circumstantial as well as direct evidence ( Buckhanon v. State, 151 Ga. 827 (8b), 108 S.E. 209), provided it is sufficient to exclude every other reasonable hypothesis save that of the guilt of the accused. The evidence here establishes with certainty that while the two eyewitnesses did not pay sufficient attention to the defendant to positively identify him either while he was driving or getting out of the automobile, nevertheless, the only persons in the automobile which struck the prosecutor were a man and a woman; the man was driving; he got out of the car; within two minutes the defendant had walked over to the prosecutor to discuss the damages to his automobile, and there is no indication that any other person whatsoever was present until the witness Nix arrived within three minutes of the collision. The evidence, although circumstantial, is sufficient to establish the defendant as the driver of the automobile, and that he was at that time under the influence of intoxicants.
The trial court did not err in denying the motion for new trial.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.