Opinion
39121.
DECIDED OCTOBER 24, 1961.
Operating vehicle under influence of intoxicants. La Grange City Court. Before Judge Jackson.
James C. Weldon, E. W. Fleming, for plaintiff in error.
Wilson P. Darden, Solicitor, contra.
The court did not err in overruling the motion for a new trial.
DECIDED OCTOBER 24, 1961.
Quilla Echols was convicted of operating a motor vehicle while under the influence of intoxicating liquor. His motion for a new trial was overruled. From the denial of his motion for a new trial he appealed, assigning error.
Fred Brown, a member of the Georgia State Highway Patrol, was the only witness in this case, and he testified, in part, that he and another trooper made an investigation in response to a report that a car was in a ditch or partially off the road at a location about five miles outside the city of LaGrange; that when they arrived at the scene they found a 1950 Chevrolet partially across the road with the engine running and the defendant alone in the car, sitting under the steering wheel; that he (witness) went over to the defendant's car, reached inside, and cut off the switch; that defendant's car rolled back about three or four feet; that the defendant was intoxicated; that the defendant was attempting to get the car into gear, and that the defendant's car was on a concrete road in Troup County.
On cross-examination, Trooper Brown testified: "When we arrived at the scene, Mr. Echols was in the car with the motor running. The car started to roll back, when I got out of the patrol car and let the brakes off the car, it started to roll back. . . I stated . . . when we got there he was sitting with the motor running, in the road and the car rolled back when I started to get out of the patrol car. . . . I told you the car was running when we got there, setting part-way across the road and he let it roll back. . ."
On redirect examination, Trooper Brown testified that: ". . . his [defendant's] condition was so that he could not even get out of the car and I had to pick him up. I think anybody could see that it was less safe for him to drive than if he had not been drinking at all. He was sitting under the steering wheel by himself."
In an unsworn statement, the defendant said that he had a boy to drive him (the defendant) over to Teaver Road; that he bought a 50¢ drink of whisky; that he had no control over his boys and he bought that 50¢ worth of whisky to keep himself together until he got home; that the motor in his car was new and the battery would not crank it; that the boy driving "got out of the car and went," and that he (defendant) got out of the car to get someone to push it off when the troopers appeared.
1. Counsel for the defendant contends that there was no evidence to show that Quilla Echols was operating the automobile at the time the State Troopers made the investigation. With this contention we do not agree. The testimony of the only witness shows that when the troopers arrived at the scene of the alleged crime, the defendant was sitting under the steering wheel of the automobile and attempting to get the car in gear; that the motor of the automobile was running; and that the automobile rolled backwards when the witness started to get out of the patrol car.
In the case of Austin v. State, 47 Ga. App. 191 (2) ( 170 S.E. 86), it was held: "It would make no difference to one charged with operating an automobile over a public highway of this State while under the influence of intoxicating liquor that he had just gotten under the wheel of the car and had gone only a few yards when he was stopped by the officers and arrested. Such act would come within the meaning of the word `operation' as used in the statute prohibiting the above offense."
Code Ann. § 68-1503 (2c) (Ga. L. 1953, Nov.-Dec. Sess., pp. 556, 560), defines "driver" as, "Every person who drives or is in actual physical control of a vehicle." See Harris v. State, 97 Ga. App. 495 ( 103 S.E.2d 443).
Code Ann. § 68-1625 (Ga. L. 1953, Nov.-Dec. Sess., pp. 556, 575), provides in part: "(a) It is unlawful and punishable as provided in section 68-9927 for any person who is under the influence of intoxicating liquor to operate or drive any vehicle."
The evidence supports the verdict, and the court did not err in overruling the general grounds of the motion for a new trial.
2. In the only special ground of the motion for a new trial complaint is made that the court erred in not rejecting, upon motion of counsel for the defendant, the answer of the State's witness to the following question propounded by counsel for the defendant: "Q. All right, sir, you got out there and what did you see? A. We found that this 1950 Chevrolet operated by Mr. Echols —." Counsel moved to have the answer excluded on the ground that it was not responsive to the question and was a conclusion of the witness.
It is noted by the court that the answer is incomplete; however, the portion that is recorded in the record shows the answer to be responsive to the question. It is clear that the answer was in reference to facts observed by the witness when he arrived at the scene.
In his testimony prior to being asked this question, the witness testified to facts to show that the defendant was operating the vehicle. Therefore, the answer was not subject to the objection that it was a conclusion. This ground of the motion for a new trial is without merit, and the court did not err in overruling it. See Van Gundy v. Wilson, 84 Ga. App. 429 (6) ( 66 S.E.2d 93); Essig v. Cheves, 75 Ga. App. 870 (4) ( 44 S.E.2d 712).
Judgment affirmed. Nichols, P. J., and Jordan, J., concur.