Flanders v. The State., 97 Ga. App. 779, 104 S.E.2d 538 (1958)

Summary

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Judgment affirmed. Gardner, P. J., and Townsend, J., concur.

Summary

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Judgment affirmed. Gardner, P. J., and Townsend, J., concur.

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Jacobs & Gautier, for plaintiff in error.

1. While, ordinarily, "if the criminality of an act depends upon the place where it is committed, the allegation of place is material" ( Johnson v. State, 88 Ga. App. 762 (1), 77 S. E. 2d 834), the act approved January 11, 1954 (Ga. L. 1953, Nov.-Dec. Sess., pp. 556, 564, Sec. 22 (2)), has the effect of making it a criminal offense to operate a motor vehicle under the influence of intoxicants anywhere in this State ( Dockery v. State, 95 Ga. App. 486 (1), 98 S. E. 2d 123), and place is, therefore, no longer a material element of the offense. "Only in an indictment under a statute which makes the character of the place an essential element of the offense must the place at which the crime was committed be described with particularity. Burkes v. State, 91 Ga. App. 456, 86 S. E. 2d 7), we do not think that the portion of the charge here complained of can be construed as unqualifiedly instructing the jury to this effect, since the court immediately after using those words added that in order to convict the defendant, they must find that he was under the influence of intoxicating liquors to the extent that he was so affected thereby as to make it less safe for him to operate the vehicle. While the judge did not expressly withdraw the erroneous statement, he did plainly qualify the statement by stating the correct rule and by instructing the jury that the statement was so qualified. Under these circumstances, the jury could not possibly have been misled. The Harper case, supra, is distinguishable from this case in that there the two propositions were both charged (the incorrect one last) but without the court adverting in the one to the other, but in this case, while the incorrect rule was charged, the court in immediate connection therewith instructed the jury that its effect was subject to the proviso. This ground does not show cause for reversal.

3. The evidence showed that the defendant drove his automobiles from a road or highway onto private property of one of the witnesses, knocking down a fence thereon some 20 feet from the edge of the roadway. Several witnesses, including the owner, or lessee, of the property, testified that immediately after the defendant's car struck the fence, they smelled the odor of alcohol on his breath and that he staggered and was thick-tongued on alighting from the automobile and that he "had been drinking." While no witness testified that he actually saw the defendant operating the automobile, the witness did testify that the defendant was the only person in the car immediately after it struck the fence, and the evidence on behalf of the State was ample to authorize the jury to find that the defendant was operating the automobile while under the influence of intoxicants and to find him guilty under the accusation and the instructions of the court. It was not error to deny the general grounds of the motion for new trial.

Clarence H. Clay, Jr., Solicitor, contra.

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