Hitchcock v. State , 96 Ga. App. 18 ( 1957 )

96 Ga. App. 18 (1957) 99 S.E.2d 175

HITCHCOCK
v.
THE STATE.

36712.

Court of Appeals of Georgia.

Decided June 7, 1957.

C. O. Baker, for plaintiff in error.

Preston M. Almand, Solicitor, contra.

CARLISLE, J.

1. Where, on the trial of one charged with operating an automobile on a public highway of this State under the influence of intoxicants, it appears from the evidence that the defendant admitted operating the automobile at the time and place in question, and the defendant remained silent when, some 45 minutes after the wrecking of the car and he had been taken to a hospital, an intern and nurse stated to a State trooper in the defendant's presence, so that he could hear the statement, that he was uninjured and was only drunk, and the trooper stated that since he smelled a strong alcoholic odor on his breath and his speech was thick, it was his opinion that he was under the influence of intoxicants and it would be less safe for him to operate a motor vehicle than if not so affected, the jury was not authorized to find the defendant guilty as charged, for even taking the defendant's statement that he was driving the car at the time of the wreck along with his remaining silent when accused of being drunk some 45 minutes or more after the wreck as an admission, the State failed to establish the corpus delicti (driving a motor vehicle under the influence of intoxicants) aliunde the defendant's admission, which was incumbent upon it. Davenport v. State, 81 Ga. App. 787 (60 S. E. 2d 190); Chester v. State, 81 Ga. App. 788 (60 S. E. 2d 191); Waters v. State, 90 Ga. App. 329 (83 S. E. 2d 25); Ray v. State, 91 Ga. App. 16 (84 S. E. 2d 591); Gunder v. State, 95 Ga. App. 176 (97 S. E. 2d 381).

2. As the case must be remanded for another trial, the remaining special grounds of the motion for new trial being of such nature as not likely to recur on another trial, are not here considered.

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