Opinion
37481.
DECIDED JANUARY 13, 1959.
Driving under influence of intoxicants. Savannah City Court. Before Judge Alexander. September 23, 1958.
Joseph B. Bergen, Bergen Sparkman, for plaintiff in error.
Andrew J. Ryan, Jr., Solicitor-General, Sylvan A. Garfunkel, James F. Glass, Jack H. Usher, Assistant Solicitors-General, contra.
1. There is ample evidence to show that the defendant was sufficiently under the influence of intoxicants to be less able to operate a motor vehicle than he would have been without such intoxicants.
2. When testifying as to whether or not a defendant is intoxicated, a witness may properly state facts upon which his or her opinion is based, and may state whether or not the defendant was intoxicated and the extent thereof, if the witness had an opportunity to observe the condition or acts of the defendant.
3. When police officers observed a defendant thirty minutes after the alleged drunken driving and found him in such condition that he was then less capable of driving than he would have been without the intoxicants, and where the officers testified that it was their opinion that the same condition existed thirty minutes previously (that is that thirty minutes previous thereto the defendant was too intoxicated to drive as safely as he would have been had he not been drinking), said testimony is admissible to show that the defendant was under the influence of intoxicants and incapable of operating a motor vehicle as safely as if he had been sober.
DECIDED JANUARY 13, 1959.
George A. Rice was convicted in the City Court of Savannah of driving while under the influence of intoxicating liquor, and was sentenced to pay a fine of $150 or serve six months on the public works. His motion for new trial on the general grounds was later amended by adding special grounds. The court denied the amended motion, and the defendant excepts.
The evidence shows substantially: Mrs. Athlee Crosby, a City of Savannah School Guard, testified that she was on duty at about 3:40 p. m., May 30, 1958, at the school crossing at Habersham and 49th Streets when she observed the defendant drive his blue Plymouth car to the center of Habersham Street facing south, get out on the driver's side leaving his car on the white center line and go up a driveway towards a garage apartment; that "he acted very drunk"; that she had a police officer called; that before Officer Carter came, the defendant returned to his car, "staggering as before," and drove it over to the curb, got a package out of the car and returned to the house in the same manner, staggering; that she was about twenty feet from him on both occasions; that based on past observations of persons who were under the influence she would say the defendant was under the influence of liquor and in her opinion it was less safe for him to operate an automobile than if he had been sober. On cross-examination the witness testified that she was positive the defendant was alone in his car; that after he left the car in the middle of the street approximately ten minutes elapsed before he returned and moved the car to the curb; that the police came within ten or fifteen minutes after that; that from twenty feet away she could not "smell anything on him," and that she was unable to testify under oath that the defendant was "under the influence of intoxicating liquors" or that he "was not ill or under some sedative to cause him to react the way that he did."
Officer B. R. Carter testified that he answered Mrs. Crosby's call and was directed to an apartment house; that no one answered the door; that he got the defendant's tag number in order to get a full registration; that he called in additional officers, went back to the apartment and got in; that the defendant "looked awfully drunk" and when he mentioned his "driving under the influence" the defendant jumped up and said, "I'll have your job for this" whereupon the defendant put in telephone calls for Chief of Police Barnes, City Manager Jacocks or Mayor Mingledorff and finally called Sheriff Harris and talked with him and afterwards told the witness that Sheriff Harris had advised him to order the witness out of his house. The witness further stated that in his opinion the defendant was very drunk and by virtue of this condition it was less safe for him to operate an automobile than if he had been sober.
On cross-examination the same witness testified that no one answered his knocking on the door the first time; that when he came back the second time he shook the screen door; that it came open and he knocked on the inner door and it came open; that the defendant's wife came to the door and said, "Come on in," whereupon the witness put one foot inside the door and waited for his partner to arrive; that he and the other officers then arrested the defendant, took him down the steps because he was unable to walk and placed him in the wagon; that when they arrested the defendant they did not serve him with an arrest warrant.
On redirect examination the same witness testified that about fifteen minutes elapsed between the time he arrived at the scene and the time he talked with the defendant; that "there is no possibility he could have gotten in the condition that he was in within thirty minutes."
Officer Beville testified that when he arrived at 49th and Habersham Streets, Mrs. Crosby was there alone; that Officer Carter was at the apartment-house door; that the defendant was standing just inside the door and was very "high and under the influence"; that he did not see him driving his car but that in his opinion it would not have been safe for the defendant to drive a car in the previous thirty minutes.
Sgt. J. A. Henry of the Savannah Police Department testified that when he arrived on the scene Mrs. Crosby was about her duties at the intersection; that the other two officers were with the defendant and his wife; that the defendant was very much under the influence and in the witness' opinion it was less safe for the defendant to drive a car, by virtue of the condition he found him in than if he had been sober, that it would have been less safe for him to have driven a car in the past thirty minutes from the time he saw him.
1. We have set out the evidence in detail. Counsel for the defendant contend that the evidence was insufficient to sustain the conviction. When we consider the evidence of all the witnesses for the State we find that it is entirely sufficient to sustain the verdict, and the motion for a new trial as to the general grounds is not meritorious.
2. In the first special ground complaint is made that the testimony of Mrs. Athlee Crosby was erroneously admitted. We will discuss her testimony with the view of determining whether or not it is admissible as set out in this special ground. Her testimony is in direct line with testimony which this court decided was properly admissible in Spence v. State, 83 Ga. App. 588 ( 63 S.E.2d 910) where it is said: "On the issue of intoxication, it is proper either for the witness to state the facts upon which he bases his opinion that the accused was under the influence of liquor, or, when he has had suitable opportunity for observation, to state whether or not the person was intoxicated and the extent thereof." The witness testified substantially that she observed the acts of the defendant and that he parked his car in the center of the street, left the car and staggered up a driveway towards a garage apartment; that he appeared drunk; that he was acting in a drunken manner; that she was about twenty feet away from him; that it was her opinion, from observing other drunken persons, that the defendant was drinking so that he was less capable of operating a motor vehicle than if he had not been drinking. It is our opinion that the testimony of Mrs. Crosby was admissible under the ruling of Spence v. State, 83 Ga. App. 588, supra, and other decisions to the same effect. The court's ruling as to the admissibility of this testimony was correct and the contentions based thereon are without merit.
3. We will deal with the other special grounds together: In regard to the assignment of error because of alleged inadmissibility of testimony of police officers who observed the defendant some thirty minutes after the defendant parked the car, this contention is not meritorious. An officer answered Mrs. Crosby's call but the defendant did not open the door to the officer, whereupon the officer went back to the street, checked the license number of the car of the defendant, then called for other officers to come and assist him in obtaining admission to the apartment of the defendant; that when the wife of the defendant let the officers into the apartment the defendant "looked awful drunk" and that the defendant threatened to get the officer's job for mentioning that the defendant was driving under the influence of intoxicants; that the officers smelled liquor on the defendant's breath; that the defendant was unable to walk and that the officers had to assist him down the steps when they arrested him. One officer testified that it was his opinion that there was no possibility that the defendant could have "gotten in the [drunken] condition that he was in within thirty minutes"; that it would not have been safe for the defendant to drive a car in the condition the defendant was in then, nor during the previous thirty minutes. Another officer testified that the defendant was very much under the influence and that in the opinion of the witness it was less safe for the defendant to drive the car at the time that they saw him or thirty minutes before that time, by virtue of his inebriated condition, than it would have been had the defendant been sober.
The officers did not enter the house in a manner which would indicate illegal search and seizure. The wife of the defendant let them in. Nor was the testimony subject to being excluded because it dealt with the condition of the defendant at a time too remote from the time the defendant drove the car. See Huff v. State, 82 Ga. App. 545 ( 61 S.E.2d 787). It follows that neither this special ground, nor any of the special grounds, shows cause for reversal.
The court did not err in any of the rulings.
Judgment affirmed. Townsend and Carlisle, JJ., concur.