Opinion
34187.
DECIDED SEPTEMBER 16, 1952.
Driving while drunk; from Swainsboro City Court — Judge Powell. May 23, 1952.
H. Alonzo Woods, for plaintiff in error.
Darius N. Brown, Solicitor, contra.
1. ( a) It is not error to fail to charge the law as to circumstantial evidence where the conviction does not depend entirely upon such evidence.
( b) The theory of misadventure and accident having been raised, if at all, only in the statement of the defendant, it was not error to fail to charge on this theory without request.
2. The evidence amply supported the verdict, and, having the approval of the trial court, will not be disturbed by this court.
DECIDED SEPTEMBER 16, 1952.
William King was tried and convicted in the City Court of Swainsboro upon an accusation in two counts, charging him with operating a motor vehicle on a public highway while under the influence of intoxicating liquors, and with operating said automobile on the wrong side of the road and at an excessive speed in disregard of the safety of other persons and property. Witnesses for the State, members of the Georgia State Patrol and Georgia Bureau of Investigation, testified that in response to a call they went to U.S. Highway 56; that they met the defendant, who approached them around a curve on the wrong side of the road forcing them into a ditch; that they turned around and followed him two or three miles, clocking his speed at an average of eighty to eighty-five miles an hour; that a part of the distance he traveled ninety and over; that when they stopped him he was very drunk. The defendant made a statement that "I was drinking, I wasn't so terribly drunk, though; I was drinking but I wasn't overly drunk. If I was drunk, you've never seen a man drunk yet that admitted it." As to the speed, he stated, "The four wheels on the ground were warped and . . if anybody can hold it over fifty-five or sixty miles an hour I'll take my hat off to them."
The defendant filed a motion for a new trial on the general grounds which was later amended by the addition of two special grounds, and the overruling of this motion is assigned as error.
1. Special ground 4 of the amended motion for a new trial contends that the trial court erred in failing to charge without request on the law of circumstantial evidence. The testimony of the State's witnesses, both as to the defendant's drunkenness and as to the speed and manner of his driving, was direct, not circumstantial evidence of these facts. Where circumstantial evidence alone is not relied upon, it is not error to fail to charge without request the principles of Code §§ 38-102 and 38-109 relating thereto. Strickland v. State, 167 Ga. 452 (1) ( 145 S.E. 879).
This special assignment of error also contends that the trial court erred in failing to charge the jury on the defense of misadventure and accident, which it is contended was raised by the defendant's statement. While this court is not in accord with this contention, that the statement of the defendant makes such a valid defense, in any event it is never error for the trial court to fail without request to charge a theory raised solely by the defendant's statement. Goldberg v. State, 25 Ga. App. 197 ( 103 S.E. 90).
2. Special ground 5, contending that there was no evidence of drunkenness on the part of the defendant, is but an amplification of the general grounds. A witness for the State testified that the defendant was very drunk at the time they stopped his car. No objection was made to this testimony. Further, such testimony is not a conclusion, but is competent evidence Donley v. State, 72 Ga. App. 429 ( 33 S.E.2d 925), and cases there cited. There was ample evidence to sustain the conviction under both counts of the accusation.
Judgment affirmed. Gardner, P.J., and Carlisle, J., concur