14 Ga. App. 410 | Ga. Ct. App. | 1914
Ben Hill was convicted on October 24, 1913, in the criminal court of Atlanta of the offense of operating an automobile,
The petition for certiorari must be assumed to speak the absolute truth, since the case comes to this court on the refusal of the judge to sanction the same. Linder v. Renfroe, 1 Ga. App. 58 (57 S. E. 975). The petition alleges that one Harper was the owner of the car which the defendant was charged with illegally operating, and that said Harper testified at the trial in substance as follows: I know the defendant, he drives for me — that is, he drives my car. In this county and State, about the 22d of September, 1913, I was at the Georgian Terrace Hotel, and while there the defendant drove my car from.said hotel out Butler street and back to the Capital City Club, without my consent or authority. I own the ear which the defendant drove, and he has been driving for me some time — a good long time, I don’t know how long it has been. I paid him every week what I owed him. The defendant used the car on other occasions about three or four times, without asking my permission, and would tell me every time he had been driving the car, and where he had been, and I did not bother him for using it. He told me on this occasion that he had been working on the car, and that was the reason he did not get back at the time he should have.' Defendant stated in sribstance that' he had been driving for Mr. Harper for about a year, and had used his car several times without his consent, and had always apprised Mr. Harper of the fact after-wards ; that Mr. Harper did not tell him not to use the car on this occasion, and that he thought it would be all right, as he had used it before and Mr. Harper did not seem to care, although he always told Mr. Harper when he used the car. The defendant said that if he committed any crime he did not know it, as he used the car without any secrecy and Mr. Harper had not objected, and that he had no intention whatever of violating the law, but understood that he could do safely what he had done previously without objection. The court charged the jury (as alleged in the petition for certiorari) as follows: “Gentlemen, you have heard the evidence in the case. This defendant is charged in this accusation with
While the fact that repeated violations of section 9 of the acts of 1910 (Acts 1910, p. 93), without prosecution therefor or even objection thereto, would not license another such violation, or necessarily establish an implied consent on the part of the owner of the car to its unauthorized use, the failure to register any objection to such repeated unauthorized use might be regarded by the defendant as constituting consent, and might be considered in arriving at his intention; and hence, under the facts of this case, the doctrine of “reasonable doubt” should have been submitted to the jury.
Judgment reversed.