1. As to the general grounds, the evidence does not sustain the verdict.

2. The special ground is without merit.

DECIDED OCTOBER 26, 1954.

The defendant was convicted on an indictment (omitting the formal parts), as follows: ". . . with the offense of misdemeanor for that the said accused on the 15th day of June, in the year of our Lord one thousand nine hundred and fifty-three, in the county aforesaid, with force and arms, did unlawfully then and there while under the influence of intoxicating beers, wines, liquors and opiates did unlawfully operate a motor vehicle upon that certain road and public highway in said county known as Vinings Road (at railroad crossing). . ."

He filed his motion for a new trial on the usual statutory grounds and thereafter added one special ground.

The evidence introduced is as follows: Cecil Holt testified on direct examination: "My name is Cecil Holt. I am a lieutenant on the Cobb County police force. On the morning of June 15, 1953, at approximately 7 o'clock a. m. I went to the scene of an accident on Vinings Road at the railroad crossing. Upon arriving there I found that an engine had struck an automobile, and Mr. Birdgel Ray was being put into an ambulance. I asked Mr. Ray what happened and he said he was driving from Vinings and stopped at the railroad crossing then started to cross the tracks and the train engine struck his car. Yes, I smelled the odor of alcohol."

On cross-examination, the same witness testified: "I arrived at the scene after the accident had happened. The automobile was struck on the left side. It was knocked up the tracks, I would say about 25 feet. You ask me if the automobile was turned over. I don't know whether it was turned over or not. The right side was also damaged. It was in a ditch. Mr. Ray was not unconscious, I talked to him in the ambulance. I did not see him drive the automobile. I didn't see anyone drive the automobile. I did not go to the hospital. I did not see Mr. Ray again until that afternoon when he was placed in jail. I did not appear before the grand jury in this case. The first time. I have only appeared before the grand jury one time in this case. You ask me if Mr. Ray was injured and had several cuts about his head. He had some scratches on his head. You ask me again if I saw Mr. Ray driving the automobile. I did not see him drive the automobile, I arrived after the accident had happened."

Mr. Spratlin testified on direct examination: "I am an officer on the Cobb County police force. On the morning of June 15, 1953 I went to the scene of an accident on Vinings Road at the railroad crossing. When we arrived, my partner and I, we found that a locomotive engine had struck an automobile. We cleared the traffic, then went back to the police station. We, my partner and I, were told to go to the Kennestone Hospital and place Mr. Birdgel Ray under arrest for driving under the influence of intoxicants. We arrived at the hospital approximately 40 minutes later and talked to Mr. Ray. You ask me if he was under the influence of intoxicants, yes, he was under the influence. We waited at the hospital for them to bandage his head and until they said he was able to leave. We started to take Mr. Ray out and he said he could not walk, that his leg was hurting. We asked to see the doctor at the hospital and were told that the doctor had gone home. We called the doctor at his home, and he said to bring Mr. Ray to his home and he would look at him again. We took Mr. Ray to the doctor's house that afternoon and he said there was nothing wrong with him and that he just seemed to be drunk and should be put in jail to sober up. We then took Mr. Ray and placed him in jail that afternoon."

On cross-examination, the same witness testified: "We arrived at the scene after the accident had happened. We arrived right behind Lt. Holt. I did not talk to Mr. Ray at all, he was in the ambulance. I saw where the train hit the automobile. It hit him on the left side. It knocked it up the tracks, I don't know how far. You ask me if the right side of the car was damaged, yes, I think it was, I don't know if it was turned over or not. I smelled gasoline at the scene, some had spilled out of the car. You ask me if I saw Mr. Ray talking to anyone, I don't remember seeing him talk to anyone. I was so busy working traffic at the crossing that I don't remember seeing anyone talking to him. I don't know whether he was unconscious or not. He was lying on the stretcher, I did not see him move. I did not see Mr. Ray drive the automobile. It was about 40 minutes after we got back to the station then went to the hospital to arrest Mr. Ray. We saw him there, I smelled alcohol on him. I smelled the drugs and odors of the hospital also. You ask me if Mr. Ray was unconscious and badly injured. He was not unconscious, but he had some scratches on his head. We waited for them to bandage him up. He complained of his leg hurting and said he could not walk. I did not see Mr. Ray drive the automobile and I did not talk to him at the scene of the accident. Officer Bullard and I had worked a traffic detail at Lockheed from 7 a. m. to 7:30 a. m., and Lt. Holt was at the scene when we arrived. In the afternoon, Mr. Ray told us he had been hit by the train while he was driving on 10th St. in Atlanta."

Mr. Bullard testified on direct examination: "My name is Bullard. I am an officer on the Cobb County police force. My partner and myself received a call to go to the scene of an accident on Vinings Road at the railroad crossing on June 15, 1953 at about 7:30 o'clock a. m. We arrived behind Lt. Holt. We found that a train had hit an automobile. Mr. Ray was being put into an ambulance. We went to the hospital and placed him under arrest. Yes, he was under the influence of alcohol. We waited for the hospital to release him, then he said his leg was hurting, so we took him to the doctor's house and he told us there was nothing wrong with him."

On cross-examination, the same witness testified: "You ask me when I arrived at the scene of the accident, well we, my partner and I, got there after Lt. Holt. I did not talk to Mr. Ray, he was in the ambulance. I did not see anyone talk to him, I was working traffic. I did not see him move. I did not see his mouth or head move. I was working traffic. I smelled gas, I guess it spilled out of the car. I don't know how far the train knocked the car. The car was on its side. My partner and I went to the hospital and arrested Mr. Ray. He appeared to be drunk. I did not see Mr. Ray drive the car, and I did not talk to him until I saw him at the hospital."

The defendant made the following statement: "My name is Birdgel Ray. On the morning of June 15th, 1953, at or about 7 a. m., I was driving towards Vinings on my way to work. I was on Vinings Road, I came to the railroad crossing, stopped and looked, did not see or hear a train and started to cross the tracks. The next thing I remember was that afternoon about 3 p. m., the police were placing me under arrest at the hospital. I was knocked out and do not remember talking to anyone at the scene of the accident. I received a deep cut over my right eye, a large knot and deep cut on the back of my head. My left shoulder and right hip was knocked out of place. I did not have anything to drink that morning, and was not drunk. I was just as sober as I am now, and was on my way to work, and that is all I know about it."

GARDNER, P. J.

1. No one who testified in this case saw the defendant operating the car at any time. It does not appear how long it was after the collision before any officer arrived on the scene. It does appear that, when the officers arrived, the ambulance was there at the scene and the defendant had been placed in the ambulance. The evidence does not show that the defendant had taken any kind of intoxicant before the accident. It is true that some of the officers claimed they smelled alcohol at the scene of the accident, but as to who had it there and when it was put there does not appear. It does not appear from the evidence that any alcohol was found on the person or in the possession of the defendant. It is true that the witnesses testified they smelled alcohol at the hospital, as well as other odors. It does appear that, when the officers carried the defendant to the home of the doctor who dressed his wounds, the doctor told one of the officers that the defendant was drunk and should be put in jail. It does not appear that this statement of the doctor was made in the presence of the defendant. Such evidence is therefore hearsay and has no probative value. The defendant's car was struck by a train and knocked approximately 25 feet. He received injuries to his head, which were treated and bandaged by a doctor at the hospital. It seems impossible that anyone could have had such an experience and not have been shocked and stunned. The evidence does not exclude every other reasonable hypothesis save that of the guilt of the accused; and as to the general grounds does not sustain the verdict.

There is only one special ground, which is to the effect that the attorney for the defendant was deprived of making his concluding argument. We think this ground is without merit. At any rate, it will not likely occur again.

Judgment reversed. Townsend and Carlisle, JJ., concur.