Opinion
19276.
SUBMITTED MARCH 12, 1956.
DECIDED APRIL 9, 1956.
Drunk driving; constitutional question. Before Judge Averill. Oglethorpe City Court. November 3, 1955.
A. C. Felton, III, for plaintiff in error.
Wm. T. Roberts, contra.
1. There was no variation in the allegations of the accusation and the testimony in the case.
2. The defendant was not harmed by the extract from the charge assigned as error.
3. The refusal of the trial judge to declare a mistrial because of an improper comment by the solicitor on the defendant's failure to make a statement in his own behalf will not be reversed by this court "where it appears that the judge immediately and at length instructed the jury to the effect that a defendant is not required to make a statement unless he sees fit to do so, that the argument of the prosecuting attorney was improper and should not be considered, and that the fact that a defendant does not make a statement should not be considered by them in passing upon the case." Thornton v. State, 190 Ga. 783 ( 10 S.E.2d 746), and cases cited.
4. The refusal to direct a verdict of not guilty is never ground for a new trial.
SUBMITTED MARCH 12, 1956 — DECIDED APRIL 9, 1956.
The accusation against Johnnie H. Jordan in the City Court of Oglethorpe, Macon County, charged him with the offense of driving and operating "a certain motor vehicle over and upon that certain public highway, in said county, known as State Route #49, while the accused was under the influence of intoxicating liquors or drugs." The offense was alleged to have been committed on June 12, 1955.
The evidence of the State in regard to the commission of the offense was by the testimony of State Patrolman Loggins, and the part of the testimony in regard to the place of the offense was as follows: "I saw him [the defendant] on or about 12th day of June, 1955 between here and the river bridge on Georgia Highway No. 26; that is Highway 49 and 26 — I believe it is Georgia 90 too. Trooper Johnson and I were patrolling that afternoon in this county and we were in Oglethorpe at the time we noticed this car coming down this street — I believe it is known as Macon Street coming down by the lumber yard that intersects with Georgia 26. I was driving and I noticed that this person did not stop at the stop sign — he failed to stop there. The stop sign is out at this street where you come out in Georgia 26, Macon Street I believe it is known as. I refer to that street that goes by the sawmill up there that joins State Route 49. He failed to stop there and turned in the direction of Montezuma, and I turned around and followed him . . . This happened in Macon County, Georgia . . . Trooper Johnson and I went riding on 49, I believe we were headed south. When I saw him I was south of the intersection. I have a rear view mirror that I use for that purpose."
The jury returned a verdict finding the defendant guilty of operating a motor vehicle under the influence of intoxicants. He filed his motion for new trial, on the general grounds, which was later amended by the addition of four special grounds. The exception is to the denial of the motion for new trial as amended.
1. It is contended by the defendant that there is a fatal variance in the allegata and probata, in that the accusation charged the defendant with operating a motor vehicle under the influence of intoxicants on a public highway, known as State Route 49, and there was no proof that the highway on which the alleged offense was committed was a public highway.
"Allegations in an indictment wholly foreign to any element in the offense charged may be disregarded as surplusage and need not be proved. The rule is otherwise as to averments which are descriptive of some element in the offense though more precise and detailed than is absolutely necessary." Shrouder v. State, 121 Ga. 615 (1) ( 49 S.E. 702); Hall v. State, 120 Ga. 142 ( 47 S.E. 519); Brand v. State, 153 Ga. 639 ( 112 S.E. 829); Robinson v. State, 76 Ga. App. 313 ( 45 S.E.2d 717); Waller v. State, 80 Ga. App. 488 ( 56 S.E.2d 491). "If the criminality of an act depends upon the place where it is committed, the allegation of place is material; and variance between the allegation and proof is fatal." Johnson v. State, 1 Ga. App. 195 (2) ( 58 S.E. 265); Isenhower v. State, 88 Ga. App. 762 ( 77 S.E.2d 834); Baker v. State, 92 Ga. App. 60 ( 87 S.E.2d 644).
Under the present law, the offense of driving a vehicle under the influence of intoxicants may be committed "upon highways and elsewhere throughout the State." Ga. L. 1953, Nov.-Dec. Sess., p. 564 (Code, Ann. Supp., § 68-1601). The definition of "highway" given in the law shows that it means a "way publicly maintained." Ga. L. 1953, Nov.-Dec. Sess., p. 561 (Code, Ann. Supp., § 68-1504 (a)). Therefore this offense may now be committed upon a public highway or at other places. Since, however, a public highway is one of the places where the offense may be committed, if the indictment or accusation alleges that the offense was committed on a stated "public highway," the proof should show that it was a public highway, and in the absence of such proof the evidence would be insufficient to support the verdict.
All laws and resolutions of the General Assembly, and certain matters of public knowledge, shall be judicially recognized without the introduction of proof. Code § 38-112. Under this provision of our law, it has been many times held that courts will take judicial cognizance of land lots and the location of lands under the State survey, as shown by the records on file in the office of the Secretary of State. Morris v. Hasty, 169 Ga. 781 ( 151 S.E. 490); Benton v. Munday, 183 Ga. 228 ( 187 S.E. 874); Guess v. Morgan, 196 Ga. 265 ( 26 S.E.2d 424).
With reference to the State Highway Board, our law provides that maps setting forth the roads authorized by law shall be approved and filed by the State Highway Board in the office of the Secretary of State as the authoritative record of State-aid roads. Code § 95-1608. Pursuant to the above requirement, maps showing Georgia Highway 49 as a State highway have been filed in the office of the Secretary of State. That which is done pursuant to mandate from the General Assembly, and declared by the General Assembly to be the authoritative record, would seem to be as much a matter of judicial knowledge as maps pertaining to the location of land lots within the State.
It appears from the evidence in the present case that the defendant was operating a motor vehicle under the influence of intoxicants on Georgia Highway 49 in Macon County. While there is no evidence in the record that Georgia Highway 49 is a public highway, it is a matter of common public knowledge that "Georgia Highway 49 in Macon County" is a public highway, and the failure to prove by direct testimony that Georgia Highway 49 is a public highway will not invalidate the verdict in the present case. Culver v. State, 40 Ga. App. 273 ( 149 S.E. 292); Bowen v. State, 47 Ga. App. 9, 11 ( 170 S.E. 104).
The defendant cites and strongly relies upon the recent case of Baker v. State, supra. The Baker case is not in point on its facts with the present case.
2. It is asserted that the trial judge erred in charging the jury that the provision of the law "with reference to driving while under the influence of intoxicating liquors applies not only on highways but elsewhere throughout the State of Georgia." It is contended that this charge was given to supply the failure of the evidence to prove that the alleged crime was committed at the place set out in the accusation; that it authorized the jury to convict the defendant on evidence of the commission of a crime anywhere in the State of Georgia; and that Code (Ann. Supp.) § 68-1601 (2) is unconstitutional.
There was no evidence in this case that the offense charged was committed at any other place than that alleged in the accusation. The charge excepted to was not, therefore, harmful to the defendant, and it is unnecessary to consider and rule upon the constitutionality of Code (Ann. Supp.) § 68-1601 (2).
Judgment affirmed. All the Justices concur.