Opinion
38252.
DECIDED APRIL 12, 1960.
Driving under influence of intoxicants. Fulton Superior Court. Before Judge Pharr. December 17, 1959.
Carpenter, Karp Mathews, Robert Carpenter, A. Tate Conyers, for plaintiff in error.
Paul Webb, Solicitor-General, John I. Kelley, Solicitor, B. B. Zellars, Eugene L. Tiller, Assistant Solicitor-General, contra.
A charge giving a correct principle of law but which is not applicable to the issues involved is not reversible error when it is harmless and not prejudicial to the losing party.
DECIDED APRIL 12, 1960.
This case is here on appeal from the Superior Court of Fulton County, complaining of the judgment of that court overruling the defendant's certiorari to the Criminal Court of Fulton County, where the plaintiff in error (hereinafter referred to as the defendant) was tried for the offenses of driving under the influence of intoxicants and speeding. The jury acquitted the defendant of the offense of speeding and found him guilty of the offense of driving under the influence of intoxicants. The defendant in his statement to the jury, stated that he had requested a blood test as provided in Code (Ann.) § 68-1625, The arresting officers testified to the contrary. It was further shown that no blood test was given the defendant. The trial judge charged certain provisions of Code (Ann.) § 68-1625, as follows: "(b) In any criminal prosecution for a violation of subdivision (a) of this section relating to operating or driving a vehicle while under the influence of intoxicating liquor, the amount of alcohol in the defendant's blood, urine, breath, or other bodily substance shall give rise to the following rebuttable presumptions: Provided, however, that the failure of such arrested person to demand such a test or to consent to such a test shall not be admitted in evidence in the trial of such person:
"1. If there was at that time 0.05 per cent. or less by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was not under the influence of intoxicating liquor;
"2. If there was at that time in excess of 0.05 per cent. but less than 0.15 per cent. by weight of alcohol in the defendant's blood, such fact shall not give rise to any presumption that the defendant was or was not under the influence of intoxicating liquor, but such fact may be considered with other competent evidence in determining the guilt or innocence of the defendant;
"3. If there was at that time 0.15 per cent. or more by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was under the influence of intoxicating liquor;
"4. Any person who is arrested for driving or operating a vehicle while under the influence of intoxicating liquor shall have the right to demand a blood test to determine the amount or weight of alcohol in his blood, and it is mandatory upon the officials in whose custody he shall have been placed after arrest to have such blood test made immediately after demand by the arrested person, provided the facilities for making such a test are available in the county of his confinement. The Director of Public Safety shall designate one or more physicians or certified hospital technicians for each county to perform such tests upon the request of any person so arrested. The costs of such test shall be borne by the person so arrested and shall be only the actual costs but in no event more than $10.
"5. The foregoing provisions of this subdivision shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether or not the defendant was under the influence of intoxicating liquor.
"6. Nothing in this section shall be construed as requiring any person to take such examination against his wishes."
The sole question insisted on in this appeal is whether the trial court erred in charging the Code section above quoted.
1. It is readily apparent that the evidence did not authorize the charge (Code (Ann.) § 68-1625) as no blood test was given the defendant. Therefore, no presumption could arise under the statute because there was no evidence to show the contents of alcohol, if any, in the defendant's blood. "A statement in the charge of the court not adjusted to the evidence is not reversible error when it is harmless and not prejudicial to the losing party." Savannah Elec. Co. v. Joseph, 25 Ga. App. 518 (4) ( 103 S.E. 723). In Pelham Mfg. Co. v. Powell, 6 Ga. App. 308, 314 ( 64 S.E. 1116) the court stated: "If the propositions of law are erroneous, the error is presumably prejudicial, and the entire record will be reviewed to ascertain if the plaintiff in error has been injured by the giving of such erroneous instructions." Another embodiment of the rule is in Jackson v. Kight Sons, 159 Ga. 584 (3) ( 126 S.E. 379), as follows: "Though a part of the charge of the court to the jury may not be pertinent to the issues involved, if it be so clearly irrelevant to such issues that the jury could not have been misled or confused by the giving of such instruction, a new trial will not be granted upon the ground that it was error to give it. It was error, but it was harmless." "Legal error is a compound of both error and injury. In the absence of either constituent element the grant of a new trial is not warranted." Harrison v. Hester, 160 Ga. 865 (3) ( 129 S.E. 528). Arnheiter v. State, 115 Ga. 572 (2) ( 41 S.E. 989, 58 L.R.A. 392), reads as follows: "The giving of erroneous or inappropriate instructions in the trial of a criminal case affords the accused no just cause of complaint, when so doing could not in any manner have operated to his injury." "Trial jurors are themselves selected for their intelligence and uprightness." George v. McCurdy, 42 Ga. App. 614, 617 ( 157 S.E. 219). See Code (Ann.) § 59-106.
In the case under consideration, there was no evidence whereby a jury could imply any presumption either for or against the defendant with reference to a blood test. We are of the opinion that the giving of said section in charge was error, but harmless error, and was not such an error as to mislead or confuse an intelligent jury.
The superior court did not err in overruling the defendant's certiorari.
Judgment affirmed. Gardner, P. J., Townsend and Carlisle, JJ., concur.