The defendant was convicted in the City Court of Elberton upon an accusation which charged that he did "unlawfully drive and operate an automobile on and upon public highway of said State while he was under the influence of intoxicating liquors." The defendant filed his motion for new trial on the statutory grounds, and thereafter filed special grounds. The court denied the motion. On this judgment he assigns error.
Special ground 1 reads as follows: "On the trial of the above stated case, the presiding judge charged the jury as follows: 'In connection with the law of the case, I give you that part of Section 68-307 of the Code of Georgia which provides that no person shall operate a motor vehicle upon any public street or highway of this State, whether as owner or operator of such vehicle while under the influence of intoxicating liquors.' The court then, and in connection with the foregoing quotation charged the jury that: 'I charge you that in a case of this kind, it is not necessary for the State to prove, nor for you to find from the evidence, that at the time the defendant was driving said automobile, if he was driving an automobile, that he was drunk at the time: But if you find from all the evidence in this case, including the defendant's statement, beyond a reasonable doubt, that the defendant drove an automobile along the public street or highway in this county, as charged in the accusation while under the influence of intoxicating liquor, you would be authorized to find the defendant guilty as charged in the accusation.'
"Movant contends that giving the foregoing quotations in charge to the jury without qualification or explanation thereof, in direct and immediate connection with it, was erroneous, contrary to law, confusing to the jury, mandatorily directive and prejudicial to the defendant, as it could only be construed by the jury to mean that if the person on trial was under the influence of intoxicating liquors, at the time and place charged in the accusation to any extent whatsoever, he would be guilty. Any explanation or qualification of the language of the court, in order not to mislead the lay minds of a jury composed of ordinary citizens, should have been given as part of the particular excerpts of the charge, and especially so when it was followed by two other equally erroneous interpretations of the law, set forth in different language, and as complained of in a separate ground of this amendment, and in direct conflict with a subsequent part of the charge of the court which is likewise complained of in ground 2 of this motion, and movant contends that he should be granted a new trial because of the erroneous, misleading, confusing and prejudicial excerpts from the charge."
Special ground 2 reads as follows: "Upon the trial of the above stated case the trial judge further charged the jury in the following language: 'On the other hand, if you do not believe from the evidence in this case, including the defendant's statement, the defendant drove an automobile on the public street or highway in this county, while under the influence of intoxicating liquors in any manner then you would be authorized to find the defendant not guilty. As to whether or not the defendant was under the influence of intoxicating liquors, in any manner at the time stated, is solely a question for you to determine from all the evidence in the case, including the defendant's statement.'
"Movant contends that the foregoing excerpts from the charge of the court in this case was erroneous, contrary to law, prejudicial to the defendant, confusing to the jury and in direct conflict with the law, and for the fourth time in the charge and in immediate sequence gave to the jury and impressed upon their minds that it was, and is the law, that if the defendant was under the influence of intoxicating liquor at the time and place charged in the accusation to any extent whatsoever, that they would be authorized to find him guilty.
"The use of the language 'While under the influence of intoxicating liquors in any manner,' is no different from and is synonymous with a charge that the jury would be authorized to find the defendant guilty if he was under the influence of some intoxicant to any extent whatsoever, whether drunk or not, as set forth in the cases of Chapman v. The State, 40 Ga. App. 725 (2); Wallace v. The State, 44 Ga. App. 571; Moye v. The State, 46 Ga. App. 727; Austin v. The State, 47 Ga. App. 191, and some other cases.
"The foregoing cases are directly contradicted by and cannot be reconciled with the citations given in the cases which are Hart v. The State, 26 Ga. App. 64
, which lays down the distinctly different rule that 'In contemplation of law, an operator of a motor vehicle on the public highway is under the influence of intoxicating liquor when he is so affected by intoxicating liquor as to make it less safe for him to operate such vehicle as it would be if he was not affected by such intoxicating liquor.' Also following this latter rule and citing the same cases is that of James v. The State, 45 Ga. App. 228
; Hinson v. The State, 88 Ga. App. 318
; Isenhower v. The State, 88 Ga. App. 762 (3)
"It is true that following the foregoing excerpts from the charge complained of, the trial judge did charge the jury that 'In contemplation of the law an operator of a motor vehicle on the public highway of this State is under the influence of intoxicating liquor when he is so affected by intoxicating liquor as to make it less safe for him to operate such vehicle than it would be if he was not affected by such intoxicating liquor.' In this latter charge we think the court laid down the correct rule, under the law, but he had previously laid down a conflicting rule four different times, and this conflict in the standard by which the guilt or innocence of the defendant was to be determined would be left to the vagaries, ideas, concepts, prejudices or bias of the layman's mind. A person trained in the law could not reconcile the conflicting theories, much less a layman, and therefore, on account of the contradictory, irreconcilable and conflicting standards of guilt and innocence submitted to the jury by the charges complained of entitles this movant to a new trial in this case."
Special ground 3 reads as follows: "Nowhere in the charge of the court in this case did the trial judge charge upon circumstantial evidence and his failure to do so was erroneous, contrary to law, prejudicial to the defendant, and contrary to the evidence in the case, as all of the evidence in the case was purely circumstantial, such as the odor of intoxicating liquors on the breath of the defendant, his alleged staggering, his manner of driving, and his conduct upon being arrested was purely and wholly circumstantial in its nature and the rule of circumstantial evidence was involved and it was the duty of the court, without request, to charge the law of circumstantial evidence, and his failure to do so entitles movant to a new trial in this case."
J. Special grounds 1 and 2 deal with the question of whether or not the trial judge committed reversible error because he did not correctly charge the law which applies to one charged with operating a car on a public highway. The true rule of law which applies to this offense, as set forth in Code 68-307 is whether or not it appears that it is less safe for such defendant to operate a motor vehicle than it would be if he were not so affected. This court in Harper v. State, 91 Ga. App. 456
(86 S. E. 2d 7), went into this question fully. The charge of the court in the instant case is contrary to the law as laid down in the Harper case. We see no necessity or benefit to be derived by going into further detail regarding the question here under consideration.
The court committed reversible error in overruling these two special grounds.
Special ground 3 complains because the court failed to charge the principle of law which applies to a case dependent upon circumstantial evidence alone. We have read the evidence upon which this ground is based, and conclude that the conviction is not based solely on circumstantial evidence, and the court committed no reversible error regarding the principle of law which applies to circumstantial evidence alone, as there was no request to charge on such evidence.
We are not passing upon the general grounds, since the case may be tried again.
The court erred in denying the amended motion.
Judgment reversed. Townsend and Carlisle, JJ., concur.