Rowell v. State

Bell, Chief Judge.

Defendant was convicted of involuntary manslaughter. The indictment charged that by the commission of the unlawful acts of driving an automobile while under the influence of alcohol and driving to the left of the center of a public highway he collided with another vehicle causing the death of its driver. Amended Code § 26-1103 (a). The district attorney in his opening statement mentioned that the appellant had been requested to take a test to determine the alcoholic content in his system and had refused to take it. The defendant’s motion for mistrial as to this statement was overruled. Several of the state’s witnesses testified over objection that defendant had refused to submit to tests to determine the alcoholic content in his system. A state witness, Officer Parks, was asked how he determined that defendant was driving one of the vehicles involved in the collision and the witness responded that he "asked” the defendant if he was driving a described vehicle at a described location. Objection was then made that no Miranda warning had been shown to have been given which was overruled. No response to the policemen’s question was ever shown to have been made by the defendant. Sheriff Shipp later testified without objection that accused admitted to him he was driving one of the vehicles and that he consumed "several” beers earlier in the day. After the state rested the defendant made an unsworn statement with assistance of his counsel in which he admitted being the driver of one of the cars involved in the collision and drinking two beers about 2 hours before the collision. His statement also contains the following question of his counsel and defendant’s answer: "Now, when the officers wanted to give you a test and you wouldn’t take a test, did they have a hearing before the public service ... before the patrol, State Patrol? A. Yes sir, they did.” Held:

1. In Johnson v. State, 125 Ga. App. 607 (188 SE2d 416), we reversed a conviction where a witness for the state was permitted to testify over objection that the defendant refused to take an intoximeter test. However, in this case there was a waiver. The above quoted question and answer from the statement of defendant shows an admission by defendant that he had refused to take an alocholic content test. Where illegal evidence is received to prove certain facts and then the objecting party later makes an admission of these same facts in his unsworn statement, there is a waiver of any error. Brown v. State, 122 Ga. App. 570 (3d) (177 SE2d 801). Code Ann. § 38-1713 which applies only to evidence has no application here as the defendant’s unsworn statement is not evidence. Park v. State, 224 Ga. 467, 480 (162 SE2d 359); Roberson v. State, 12 Ga. App. 102 (2) (76 SE 752); Bragg v. State, 15 Ga. App. 623 (4) (84 SE 82).

2. Error is enumerated to the admission of the incriminating statements made to the police officers. There is no merit in this contention for three reasons. First, as to the Miranda issue, no incriminating statement was ever shown to have been made by defendant to Officer Parks. All that Parks testified to was that he asked the defendant if he was driving the automobile but no incriminating response to this query was ever brought out by the witness after the overruling of this objection. Secondly, as to the other incriminating statement made to Sheriff Shipp, no objection was made to this testimony. Thus any error was waived. Thirdly, even if otherwise erroneous the defendant waived any error as to them as in his statement he voluntarily admitted driving the car and drinking beer prior to the collision. Brown v. State, 122 Ga. App. 570 (3d), supra.

Submitted September 6, 1972

— Decided January 18, 1973

— Rehearing denied February 9, 1973 —

Howe & Howe, Richard C. Sutton, for appellant.

John T. Perren, District Attorney, for appellee.

3. The evidence authorized the conviction.

Judgment affirmed.

Panned, Quidian and Stolz, JJ., concur. Had, P. J., and Eberhardt, P. J., concur speciady. Deen, Evans and Clark, JJ., dissent.