1. The failure to charge in substance Code § 38-109 dealing with the sufficiency of circumstantial evidence in criminal cases is reversible error, even in the absence of a timely written request, where a verdict of guilty is based on circumstantial evidence alone.
2. The general grounds are not passed upon, since this case is reversed on the special ground and is again to be tried.
DECIDED NOVEMBER 9, 1949. J. H. Culver was tried in the Superior Court of Bartow County on a bill of indictment charging him with operating a motor vehicle on a certain public highway in said county while under the influence of intoxicants. The jury trying the case was authorized to find facts substantially as follows: that on November 23, 1947, the defendant was driving an automobile belonging to one Willie Ray in a southerly direction along Highway *Page 439 No. 411; that Willie Ray was riding with the defendant; that they were on the way to carry the defendant home; that upon reaching the point on Highway No. 411 about 50 or 75 feet north of where the driveway leading to the home of one Joe Stevens joins said highway, one Paul Pinion, operating an automobile in the same direction in which the defendant was going, drove into the back end of the car the defendant was driving; that Pinion then swerved to the opposite side of the road and collided with an automobile being operated by one Kenneth Cady; that this collision damaged the car being driven by Pinion in the extent of approximately $125 and damaged the car being driven by Cady to the extent of approximately $200; that after this collision the defendant continued until he reached the driveway leading to the home of Joe Stevens and then drove up to the house, which was located about 75 to 100 yards from the highway; that Pinion and Cady proceeded up to this house and reached it about the time that Willie Ray and the defendant got out of the car, that the defendant returned to the scene of the wreck with Pinion and assisted him in pushing his car out of the highway; that at that time Pinion smelled the odor of intoxicants on the breath of the defendant; that approximately 30 minutes later a State trooper appeared on the scene, that in the meantime the defendant had gone into the house of Joe Stevens; that the State trooper sent for the defendant and, when he appeared, he admitted he had been driving the car and that he was drinking.
The evidence also disclosed that it was a very dark and foggy evening and had been raining.
The jury returned a verdict of guilty and the court sentenced the defendant to pay a fine of $75, to include the costs, and to serve six months in jail and twelve months in the public-works camp, to be served outside said penal institutions conditioned upon the payment of the said fine and costs and also conditioned upon the defendant paying the sum of $125 to Paul Pinion and the sum of $200 to Ed Cady for damages done to their respective automobiles.
The defendant filed a motion for a new trial on the general grounds, which was later amended by adding a special ground in which it is contended that the trial court erred in failing to *Page 440 charge without a request the principle of law by which the weight of the circumstances is to be determined and under what circumstances a conviction on circumstantial evidence is warranted.
The exception is to the overruling of the motion for a new trial. 1. Construing the evidence in its light most favorable to support the verdict, the jury was authorized to find that the defendant had the odor of intoxicants on his breath immediately upon the automobile which he was driving being stopped in the yard of Joe Stevens and before he got out of it. The testimony showed that the witness who accosted him there was with him a few minutes later down at the scene of the wreck where he actually smelled his breath. And witnesses, a few minutes after this time, testified that he was under the influence of liquor to a considerable extent. There was also slight opportunity for the defendant to have taken a drink between the time of the collision and the time he was accosted by one of the witnesses for the State. There was no opportunity for him to have taken a drink from that time until this witness smelled an alcoholic beverage on his breath. This is therefore direct evidence that the defendant had consumed some alcoholic beverage prior to the collision. There was considerable evidence that the defendant was under the influence of intoxicants, and that he admitted that he had been drinking some 20 to 30 minutes after the collision. This is circumstantial evidence of the fact that the defendant was under the influence of intoxicants before and at the time of the collision.
While there is direct evidence that the defendant had consumed some alcoholic beverage prior to the collision, this is, at most, only circumstantial evidence that he was under the influence of alcoholic beverages within the meaning of Code (Ann. Supp.) § 68-307 at the time of the collision. The State, therefore, relied solely on circumstantial evidence for its conviction. The failure to charge in substance Code § 38-109 dealing with the sufficiency of circumstantial evidence in criminal cases is reversible error, even in the absence of a timely written request, where a verdict of guilty is based on circumstantial evidence *Page 441 alone. See Code, § 38-109 and many cases cited thereunder, catchword, "Charge."
2. The sufficiency of the evidence as raised by the general grounds of the amended motion for a new trial is not passed upon, since the case is to be tried again, and it is not known what additional evidence may be included in the next trial.
The judge of the trial court erred in overruling the motion for a new trial as amended.
Judgment reversed. MacIntyre, P. J., and Gardner, J., concur.