Riggs v. State , 74 Ga. App. 388 ( 1946 )

Where one is accused of public drunkenness "by the excessive use of intoxicating wines, beers, liquors, and intoxicating beverages," and the evidence for the State shows that he was intoxicated by the excessive use of some one of such intoxicating drinks, but which particular one is not determined, such evidence is sufficient to sustain a conviction, all other elements of the offense having been sufficiently proved.

DECIDED OCTOBER 11, 1946. The defendant was convicted of drunkenness on a public highway under the Code, § 58-608. His motion for a new trial, based on the general grounds only, was overruled. The indictment, so far as it is material here to state, alleges that the drunkenness "was caused by the excessive use of intoxicating wines, beers, liquors, and intoxicating beverages." The State's evidence on this particular point of the indictment, appears from three witnesses. The first testified to the effect that the accused was drunk, but gave no testimony as to what caused the drunkenness. The second witness, the sheriff, testified: "He [meaning the defendant] was drunk when I got out there. As to what he was drunk from, drinking something, wine, beer, whisky, or some intoxicating drink." On cross-examination the same witness testified: "I couldn't tell you what he was drinking." On redirect he testified: "I could smell the odor of it." The third witness testified: "He [meaning the defendant] was drunk, very drunk." We do not deem it necessary to detail the evidence as to the reprehensible conduct of the defendant on the public highway, since there is no contention as to any issue in the case except the one issue that the State's evidence failed to show what caused the intoxication of the defendant, and failed to show that the defendant was intoxicated "by the excessive use of intoxicating wines, beers, liquors, and intoxicating beverages." Able counsel for the plaintiff in error argues very earnestly and plausibly that the case at bar as to its facts and as to the law applicable thereto is controlled by the decisions in Brand v. State, 153 Ga. 639 (112 S.E. 829),Brand v. State, 28 Ga. App. 719 (113 S.E. 57), andHutchinson v. State, 46 Ga. App. 219 (167 S.E. 205). We can not agree with this contention. Those cases differ from the instant case in two material particulars: first, the indictments in the cases cited alleged opiates, in addition to the intoxicating drinks; and second, the evidence does not reveal, in the cases cited, that the drunkenness was caused by either the intoxicants or the opiates, as alleged in the indictments. In the instant case, it will be observed that opiates are not alleged in the indictment and, in the second place, the sheriff testified that the defendant was intoxicated by some one of the intoxicants alleged. It would be straining the intent of the statute to require a witness for the State to distinguish between the odors of whisky and of wine, beer, and other intoxicating liquors, when they find and arrest an accused in a drunken brawl on a public highway.

Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.