101 S.E.2d 51 | Ga. Ct. App. | 1958
SPENCE
v.
THE STATE.
Court of Appeals of Georgia.
Rupert A. Brown, for plaintiff in error.
Preston M. Almand, Solicitor, contra.
*853 CARLISLE, Judge.
1. Before a person charged with a particular crime can be convicted, the evidence must prove the corpus delicti. That is, the evidence must show not only that a crime has been committed, but that the defendant was the perpetrator of it. Bines v. States, 118 Ga. 320 (1) (45 S.E. 376, 68 L. R. A. 33); Gunder v. State, 95 Ga. App. 176 (97 S.E.2d 381).
2. In the prosecution of one charged with the offense of operating a motor vehicle on the public highways of the State under the influence of intoxicating liquors or drugs, it is essential that the evidence show not only that the defendant was intoxicated when apprehended, but that he was the operator of the vehicle or that he had in fact operated the vehicle under such circumstances as would justify an inference that he had operated it while under the influence. Stewart v. State, *852 49 Ga. App. 332 (175 S.E. 485); Welch v. State, 53 Ga. App. 222 (185 S.E. 361).
3. Accordingly, where the evidence introduced on behalf of the State showed merely that an automobile belonging to the defendant was observed being operated on a public street or thoroughfare; that when the officers stopped the automobile they arrested the defendant who was in the automobile and was in an intoxicated condition; that another adult person was also an occupant of the automobile; and, where the evidence wholly fails to show directly that the defendant was the operator of the automobile and where the circumstances otherwise appearing in the case are equally consistent with the theory that the other occupant was the driver of the automobile as with the theory that the defendant was the driver, the evidence was insufficient to authorize the verdict of guilty. The trial court erred in denying the motion for a new trial on the general grounds.
Judgment reversed. Gardner, P. J., and Townsend, J., concur.
