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Murder. Catoosa Superior Court. Before Judge Coker.
This is an appeal from a conviction of murder with a recommendation of mercy. The defendant drove his automobile into the deceased, an 11-year old girl, who was standing at a mail box located in front of her home five feet off the paved portion of the road. The defendant enumerates as error the admission of the following evidence over his objections: 1. Testimony of a State expert witness that "anything from 1.0 to 1.5 milligrams [of alcohol in the defendant's blood] is considered under the influence but not definitely intoxicated" where the jury was not instructed that the presumptions arising from a blood alcohol test are to be governed by the provisions of Code Ann. 68-1625 which provides that such alcohol content shall not create any presumptions either way; 2. The result of a blood alcohol test administered by someone other than an official designated for that purpose under Code Ann. 68-1625; 3. The result of a blood test without a definite showing that the blood sample tested was the blood taken from the defendant; and 4. Three beer cans and a whiskey bottle which defendant contends had not been properly identified or connected with the case.
1. The statutory presumptions under Ga. L. 1953, Nov. Sess., pp. 556, 575 (Code Ann. 68-1625 (B)) arise only if the blood test is performed at the request of the defendant in the county of his confinement by a designated specialist as prescribed by the statute. Pittman v. State, 110 Ga. App. 625 (2) (139 SE2d 507). However, there is nothing which prohibits the introduction of expert testimony concerning the result of a blood alcohol test administered by a qualified person although he might not be designated to perform such tests under the Act. Section (b) 5 of this Act: "The foregoing provisions of this subdivision shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether or not the defendant was under the influence of intoxicating liquor." Furthermore, nine witnesses testified, without objection, that the defendant was highly intoxicated. Seymour v. State, 210 Ga. 21 (2) (77 SE2d 519); Davis v. State, 211 Ga. 76 (2) (84 SE2d 46); Pierce v. State, 212 Ga. 88 (1) (90 SE2d 417); and Toler v. State, 213 Ga. 12 ((3) (96 SE2d 593).
Accordingly, there is no merit in Enumerations of error 1 and 2.
2. The evidence shows that the blood sample was handled in the normal course of testing and there is nothing in the record that creates a suspicion that the blood tested was other than that taken from the defendant. The identity of such blood samples need not be proved beyond all possibility of doubt or that all possibility of tampering with them be excluded. The circumstances need only establish reasonable assurance of the identity of the sample. Interstate Life &c. Inc. Co. v. Whitlock, 112 Ga. App. 212, 224 (3) (144 SE2d 532).
3. The beer cans and whiskey bottle were sufficiently identified to authorize their admission in evidence. Wooten v. State, 224 Ga. 106 (6).
J. Donald Bennett, for appellant.
Friday May 22 18:47 EDT

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