Deloach v. State , 78 Ga. App. 482 ( 1949 )

1. The evidence authorized the verdict.

2. The court did not err in overruling the motion for mistrial and that the judge disqualify himself.

DECIDED JANUARY 22, 1949. In the City Court of Reidsville, Judge C. L. Cowart presiding, there came on for trial at the March term 1948, an accusation in two counts, filed March 3, 1947, charging A. R. DeLoach with the commission of a misdemeanor. Count 1 charged the defendant with driving an automobile while under the influence of intoxicants, and count 2 charged him with driving his automobile on the left side of the center line of the highway while a vehicle was approaching from the opposite direction. The jury returned a general verdict of guilty and the defendant moved for a new trial which was overruled and he excepted.

J. C. Moody, prosecutor in the case, testified: "He [the defendant] was driving a Ford pickup truck and I was driving a Ford coach automobile. We met and collided on State route 25, one mile south of Glennville. This was about seven-thirty at night and was very foggy and hard to see. I was coming from the direction of Ludowici, and he was going south towards Ludowici. We met in front of and near the Rahn filling station. I was driving at about 35 miles per hour and I could not see very far ahead. When I first see DeLoach's truck, it was only about 12 feet in front of me, and he was on my side of the road and, on the wrong side, since I was on my side of the road. He was driving to the left of the center line of the road when we collided. My car was knocked somewhat across the road by the collision, and I was knocked out. The next thing I knew someone was saying, ``Hold on,' and then my car was hit by a car driven by Leland Baker. I was then taken out of my car into the home of Mr. Strickland nearby and given treatment from which I was later carried to the hospital, where I stayed for two weeks. I did not talk with DeLoach then and do not know whether he was drinking or not. I later talked with him at his house in Glennville and demanded that he pay me damages. In that conversation he admitted that he was under the influence of whisky when we had our collision. . . . [Testimony related to disqualification of the judge.] . . I was not drinking at the time of the collision, though I had taken a drink about one o'clock that day. My car was destroyed. This collision took place in Tattnall County, Ga., on route 25. I did not swear out any warrant for DeLoach for more than a month after this happened. Just before the collision, a car passed me going in the same direction I was."

Joe Creech testified for the State: ". . On Sunday night, January 19, 1947, I, along with Colquitt Dowdy, was riding around the streets of Glennville at first dark, and we found a pickup truck in a ditch on State route 25 in the edge of Glennville. In it at that time were the man whom I now identify as A. R. DeLoach, though I did not then know his name, and two Negroes. Dowdy and I pulled this truck out of the ditch, and left them. This was about 30 minutes from the time DeLoach had a collision with J. C. Moody, and I know this for the reason that I went to the scene of the collision and recognized the same pickup truck and DeLoach. I looked in the back of the truck at the wreck and I saw a chain and some other articles, but no bottles of any kind. When we pulled DeLoach's truck out of the ditch, he got out and walked about, and I thought that he was drunk for the reason that he staggered, though I did not get near enough to smell his breath. After he got back in the truck, he asked Dowdy and I [sic] to have a drink with him and at the time held in his hand a bottle which was about half full of some colored liquid. When I got to the scene of the collision neither Moody nor DeLoach was there, but the cars were, two cars and this truck, all jammed together. Dowdy is now in the U.S. Army away from home."

Sergeant Beasley, a member of the State Highway Patrol, testified for the State in part: ". . When I arrived there these two cars were there, also a taxicab, but the drivers were not there. I found them jammed together, and the pickup truck was pointing south, and on the wrong side of the road. Its tracks showed that it was entirely on the wrong side of the road when the collision took place. I found a bottle with a small amount of whisky in it in the foot of the pickup truck. I did not find any whisky in the other cars. . . I then left the scene and went to a nearby house and talked with J. C. Moody. He appeared sober though suffering from hurts. I then proceeded to Jesup where DeLoach had been taken to the hospital there, and I talked with [him] there that night in the hospital about 11 o'clock. I asked him what caused the wreck and why he was driving on the wrong side of the road, and he said that he had taken too many drinks, after he and his wife had had a row. He, when I talked with him appeared to be very much under the influence of whisky and I could then smell it on him."

J. A. Rimes testified for the defendant: ". . I am engaged in the mortuary business in Glennville, including the operation of an ambulance and was so engaged January 19, 1947. On that day, about 8 o'clock p. m., I was called to the scene of the collision between J. C. Moody and A. R. DeLoach, and carried DeLoach from there to the hospital at Jesup. I found him lying on the ground and with the help of others I picked him up, put him in the ambulance, and at Jesup helped carry him into the hospital. He seemed to be suffering, but so far as I could tell he was not under the influence of whisky in any way, and I did not smell the odor of it on his breath. He appeared to me as perfectly sober."

The defendant made the following statement: "The fog was so thick that you could not see but a few feet ahead of you, and when I got nearly in front of the Rahn filling station, I met a car on my side of the road, and to dodge him and avoid being hit, I turned to the left to miss him and after passing him tried to turn back on my side, Moody's car met mine head on. I was knocked unconscious, and know nothing from that time ``till next morning when I found myself in the Jesup hospital. I have not the slightest recollection of seeing Sergeant Beasley in the hospital or anyone else ``till the next day. I could not tell what happened, but Moody wanted me to pay him one thousand dollars for his damage. He talked with me about it at my home in Glennville in the presence of W. R. Holland, and the next day Moody and his lawyer, Mr. Dan Cowart, came to see me on our farm. Mr. Cowart then told me, in the presence of Moody, that we have enough on you to put you in the penitentiary for 15 years, and we will do this, unless you pay us $1000. He said after I told him that I did not have the money that I should get it, he did not care where it came from, and that if I would give them the $1000 there would be no prosecution, but if I failed to pay them they would prosecute me and put me in prison. The warrant in this case was sworn out for me some days after this threat by Moody's lawyer. I was not drinking, and was on the wrong side of the road only to dodge being run into by another car, driven by whom I do not know."

As soon as the prosecutor, Moody, had testified, counsel for the defendant moved for a mistrial and that the judge disqualify himself. The court overruled these motions. The brief of evidence shows further that after the verdict finding the defendant guilty had been received and the jury relieved, the court made the following statement: "Mr. DeLoach, you have been found guilty by the jury, but the court will not impose sentence upon you now, but will do so at the next term of this court. Your conduct generally as well as what you do about this damage claim against you, between now and that time, will have a great deal to do with what your sentence will be." 1. The evidence, which has been set out in the foregoing statement of fact, authorized the verdict.

2. The defendant made a motion for mistrial and to disqualify the judge which he based upon the following testimony of the prosecutor: "A day or two later, after I had employed Mr. Dan Cowart as my attorney, he and I went to Mr. DeLoach's farm and we talked with him there about paying damages. I do not remember anything about Mr. Cowart telling him that he would be prosecuted and put in the penitentiary unless he paid us $1000, though that is the amount that I wanted him to pay me. I employed Mr. Cowart to collect damages from Mr. DeLoach, for this collision, and to do all necessary things to that end. He is still employed for the purpose, and this case is the only legal action I have taken about the matter. I would not have prosecuted Mr. DeLoach if he had paid me my damages that I demanded of him. I agreed to pay Mr. Cowart a percentage of all the money that he collected for me from Mr. DeLoach, and this is the only way that he is to get any pay from me for his work. I have not paid him or agreed to pay him otherwise." Such motion was stated in the following language: "Your honor, since it appears from the testimony of the prosecutor, that your son, Mr. Dan Cowart, has for collection the claim for damages of the prosecutor against the defendant, for only a contingent fee, and this is the only legal action being taken, your son has a financial interest in this case, and we move that a mistrial be granted, and that your honor disqualify himself to further try this case." This motion was overruled by the court.

Code (Ann. Supp.), § 24-102: "No judge or justice of any court . . shall sit in any cause or proceeding . . when such judge is related by consanguinity or affinity to any party interested in the result of the case or matter within the sixth degree." InBeasley v. Burt, 201 Ga. 144 (39 S.E.2d 51), it is said in headnote 1: "A judge is not disqualified because he is interested in the subject to be decided, where he has no direct, immediate interest in the judgment to be pronounced. To work a disqualification the interest must be a direct, certain, and immediate interest, and not one which is indirect, incidental or remote." Not only was the judge authorized to find, but the only reasonable meaning to be derived from such testimony relative to the disqualification of the judge was that Mr. Dan S. Cowart, the son of the judge, had been employed as an attorney at law to collect damages, that no action had been taken on the matter and that his employment was still in effect for that purpose. The instant case was a criminal prosecution instituted by the prosecutor himself and Mr. Dan S. Cowart was assisting the solicitor in the prosecution of the case and there is nothing in the evidence to indicate that Mr. Dan S. Cowart had advised the action or that he would reap any pecuniary gain himself by reason of the conviction, and thus the interest of Mr. Dan S. Cowart was one which is not direct, certain, and immediate, and Judge C. L. Cowart, the father of Mr. Dan S. Cowart, did not err in refusing to disqualify himself. Young v. Harris, 146 Ga. 333 (91 S.E. 37); Roberts v. Roberts, 115 Ga. 259 (41 S.E. 616, 90 Am. St. R. 108); Burch v. State, 18 Ga. App. 290 (2) (89 S.E. 341).

What the defendant said in his statement to the jury concerning matters related to the question of the disqualification of the judge, or what the judge said in postponing the sentencing of the defendant until the next term of court would not change this situation.

The court did not err in overruling the motion for a new trial, or in refusing to grant a mistrial or disqualify himself.

Judgment affirmed. Gardner and Townsend, JJ., concur.