One of the contentions in ground 1 of the motion for rehearing is that the evidence did not authorize a finding by the jury that the defendant was in an intoxicated condition at the time of the occurrence in question. On direct examination, Dwight Adams testified relative to the question of intoxication of the defendant in part as follows: "I drove with Trooper Brown to Royston and carried him to the hospital [of Dr. S. D. Brown] over there on orders to see about the boy and brought him back to Lavonia and charged him with reckless driving and held him. He didn't seem like a drunk man, but you could detect the odor of intoxicants on him — I smelled the odor of intoxicants." On cross-examination, Adams testified in part: That "I couldn't tell what Mr. Payne had had to drink by the smell of whisky on him, but it was an intoxicant. It could have been whisky and it could have been home brew. It had no special odor that I could detect; I say it was an intoxicant of some kind. I smelled no special odor and could not tell whether it was whisky, wine or beer, or home brew — I think it was intoxicants. It smelled fermented like you will find on anybody's breath who has been drinking; it had that odor on it — a sour odor. It couldn't tell you whether it was whisky; it smelled like some intoxicants. I don't know whether whisky is fermented — I said it was intoxicants. I don't know if wine is a *Page 657 fermented drink — you are telling me something. Beer may be fermented and whisky may be a distilled drink. You are telling me something — I guess it is right. I couldn't tell you if the odor I smelled was something like wine. Apparently from his conduct he was normal; he carried himself well and rode with us to Royston and back. He was excited like most people would be who had been in an accident."
On direct examination, Tom Ed Maxwell testified in part: That he was at a filling station on a corner of the street intersection and saw the collision. "I saw Payne after his car struck Shirley's car. I didn't see him take a drink, but I smelled it on him. It was twenty or twenty-five minutes after the cars hit that I smelled whisky on Payne, I guess. Payne got cut some place on his head and hand. I am not related to any of these parties." On cross-examination, Maxwell testified in part: "And I said I smelled whisky on him. He wasn't as drunk as I have seen them, but he smelled of whisky. I am qualified to state that that was a whisky smell — I know that pretty well. I identified the odor I smelled as being whisky on him. I don't know what kind of whisky; it might have been corn whisky and it might have been sugar whisky. You can tell the difference when it is made with syrup when you drink it. If it is brown, you can tell when you smell it. I determined that was sugar whisky. He wasn't staggering. I seen him walk — he staggered and I thought he was hurt. When I saw him, he was hurt. There were cut places and blood on his face and hands. His teeth looked like they were broke or knocked loose and he had blood on his mouth."
On direct examination, Dr. S. D. Brown, a practicing physician, testified in part: "I saw Mr. Payne, the defendant, when he came to the hospital for treatment. He had a cut lip and I sutured his lip for him. I had an opportunity to observe his condition as to whether he was drinking. I would say that Mr. Payne was drinking; I would not say that Mr. Payne was drunk, but it was evident he had had something to drink. I would say that he had something to drink." On cross-examination, Dr. Brown testified in part as follows: "I talked to Mr. Payne, the defendant. He also was injured. I treated him. He had a cut lip and I sewed it up for him. He was able to walk, but it was evident he had had something to drink. I made a notation on my paid in case trouble came *Page 658 up and there was a court case of it, and this morning I talked with the nurse who helped me during Mr. Payne's treatment, and I put a notation on my record that he was intoxicated. Now, he wasn't drunk; he was able to walk around, but it was evident that he had something to drink; you could smell it on his breath, and I went into that very thoroughly to be sure that was the case. As I say, I made a notation on the book, that note of his condition. As I say, a man could stand up and walk and talk and his mind was clear, but you could smell liquor on his breath. I smelled alcohol on his breath. I would not be able to tell whether it was corn liquor, beer or what. I have drunk mighty little corn liquor; I have drunk mighty little rye liquor. I am familiar with the breath, and this man had had some drinks, I would say. I have been a practicing physician for several years. I frequently see patients under the influence of whisky." Among the patients carried to Dr. Brown's hospital after the wreck was the defendant; Dr. Brown testified in part as follows: "I don't know whether Mr. Payne remained there about an hour or two hours before that or not; I did not see him until I had finished the other case. I imagine it was after dark; the patients got in there about dark or late in the afternoon, and it may have been eight or nine o'clock when I got to Mr. Payne, as well as I remember it. I remember making an entry on a piece of paper at the time that I examined him — I made a notation `intoxicated.' That was my diagnosis. I arrived at my diagnosis that he had had a drink from the odor on the patient's breath, and I was very close to his breath when I was sewing up his lip. He could walk and he could talk with a clear mind, but he did have a distinct odor on him which you get from intoxicating drinks."
In addition to the quoted testimony of Tom Ed Maxwell, Dwight Adams, and Dr. S. D. Brown, it appears from the testimony that after the collision those injured therein, among whom was the defendant, were taken to the hospital of Dr. S. D. Brown and there treated by him. Dr. Brown did not see the defendant until he had finished the other cases of injuries resulting from the collision. He did not know whether it was an hour or two hours before he was able to treat the defendant for his injuries. Dr. Brown at that time diagnosed the defendant's condition as "intoxicated," and he made an entry on a piece of paper at the time to the effect that the defendant was intoxicated. *Page 659
"Where the answer of the witness was that the defendant was under the influence of intoxicating liquor, the jury were authorized to say, that since the observed matter in issue could not be so fully and accurately described as to put the jury completely in the witness's place and enable the jurors to draw the inference equally as well as the witness, they preferred to determine the condition of the defendant from the direct answers of the witness who observed him, rather than from the subsequent description of his condition by the witness." Donley v.State, 72 Ga. App. 429, 431 (33 S.E.2d 925).
It is the prerogative of the jury in arriving at a conclusion upon disputed issues of fact to believe certain parts only of the testimony of each witness, and reject other parts of his testimony, and combine these parts only with other parts only of the testimony of other witnesses, and reject other parts of the testimony of each of the other witnesses, it being their duty to ascertain the truth of the case from the opinion they entertain of all the testimony submitted for their consideration. We think, under these rules, that the jury was authorized to find that the defendant at the time of the collision in question was in an intoxicated condition. Reaves v. Columbus Electric PowerCo., 32 Ga. App. 140, 151 (122 S.E. 824); Wilson v.State, 9 Ga. App. 297 (2) (70 S.E. 1125); Goldsmith v.State, 54 Ga. App. 268 (187 S.E. 694); Sutton v. State,123 Ga. 125, 127 (51 S.E. 316).
The testimony of the witnesses that the defendant at the time of the collision was operating his automobile at a speed of fifty-five to sixty miles per hour, and the physical facts testified to by witnesses who were at the scene of the collision at the time it occurred and shortly thereafter, authorized a finding that the defendant was driving his car at a speed in excess of fifty-five miles per hour.
This and all other matters in the motion for a rehearing have been considered; each and every ground of the motion for a new trial, both general and the six special grounds, were ruled on in the opinion; the motion for rehearing is
Denied. Broyles, C. J., and Gardner, J., concur. *Page 660
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