14 Ga. App. 569 | Ga. Ct. App. | 1914
The defendant was indicted for the offense of public drunkenness as forbidden by section 442 of the Penal Code, and was convicted. The indictment alleged several of the means by which the alleged intoxication was made manifest which are specified in the code section, and, in addition, charged that the drunkenness of the defendant was made manifest “by running his horse.” The defendant, in his statement at the trial, denied that he was drunk, or that he had even taken any intoxicant; but we pretermit any consideration of the defendant’s theory, for the reason that it was evidently disregarded by the jury, and the case here must stand or fall on the evidence 'adduced in behalf of the State, which the jury preferred to believe, as was their right. The testimony for the prosecution is summarized in the statement that on the date alleged in the indictment the accused was pressing his horse, and driving him very rapidly along the public road, and that as his horse would run he reeled in the buggy in which he was sitting. From the fact that the accused swung himself backward and forward, or reeled from one side of the buggy to the other, the witness for the State testified that, in his opinion, the defendant was drunk, although the witness was on his veranda thirty yards from the road at the time the accused passed, and did not know that the accused had had a drink and did not smell any whisky. There was no proof that the accused was boisterous, or cursed as alleged in the indictment; and therefore the only question which presents, itself is whether (conceding that he was shown to be drunk) he could be legally convicted of a violation of section 442 of the Penal Code, merely because he ran his horse while in a drunken condition. Section 442 of the Penal Code, so far as it relates to the State offense, is as follows: “If any person shall be and
It is plain, from the language of the statute, that any drunkenness in any of the public places mentioned therein, which is manifested by indecent condition or acting, is denounced and is punishable by law. And for this reason this court held in Lovett v. State, 13 Ga. App. 72 (78 S. E. 857), that one who made an indecent spectacle of himself by lying asleep, while drunk, upon a public street, after he had vomited over himself, was guilty of violating the statute; and in Ford v. State, 10 Ga. App. 442 (73 S. E. 605), we held that where one went to another’s house in such a state of intoxication as that he frightened a child, and fell down helpless as a result of his effort, this conduct was, under the circumstances, indecent. The question has been considered by this court more than once, but since the drunkenness in the present case was manifested by nothing more than the reeling and swinging backward and forward of the defendant, in his buggy, while running his horse, the decision in this case is fully controlled by the ruling of this court in Peterson v. State, 18 Ga. App. 766 (79 S. E. 927); and for that reason the court erred in overruling the motion for a new trial. We do not mean to say that the running of his horse by a drunken man might not be an element which would contribute to or aggravate the indecency of some other act or condition which could well be included within that term, but mere fast or reckless driving can not be said to be “indecent,” although it may be illegal.
The defendant in the present case might be guilty of a violation of the statute forbidding cruelty to domestic animals, if he drove his horse at an immoderate rate of speed and continued this driving for a cruel and unreasonable length of time, or if the driving for any reason was so disproportioned to the capacity of the animal to endure it as to render such driving cruel. However, as pointed
Judgment reversed.
