Townsend, Judge.
1. (a) Where an indictment charges involuntary manslaughter in the commission of an unlawful act in that the defendant, William French, while driving and operating an automobile on a described public highway amid while meeting an automobile traveling in the opposite direction did “cause said automobile which he was then and there driving and operating to crash into, upon and against the automobile being then and there driven and operated by the said Clayton McDuffie,” thereby causing injuries to Henry McDuffie, a passenger in the McDuffie automobile, from which he died—the following being alleged as unlawful acts: (1) that the accused unlawfully failed to turn the automobile which he was driving and operating to the right of the center of the highway in order to give the approaching motorist one-half of the traveled portion thereof, and (2) that he did then operate said automobile while under the influence of intoxicating liquors—such indictment is not demurrable as failing to set forth any offense against the laws of this State. Code § 27-701; Walters v. State, 90 Ga. App. 360 (83 S. E. 2d 48).
(b) The transcript of the record on appeal duly certified by the clerk will control over any other statement or extract therefrom as to what is the true record in the case. Georgia S. & F. Ry. Co. v. Pritchard, 123 Ga. 320 (1) (51 S. E. 424). There was accordingly no error in overruling a demurrer to the indictment on the ground that it contained certain unintelligible matter, when the indictment, as set out in the certified transcript of the record, shows no< such defect.
(c) Under the clear allegations of the indictment the defendant [150]*150was operating his automobile at the time of the collision..- The special demurrers seeking to attack the indictment on the ground that it does, not show whether the defendant’s automobile was in operation or stationary at the time of impact, are accordingly without merit.
2. Whether a person is alive or dead at the time he is examined by a witness is ordinarily matter of fact and not of opinion. Accordingly, testimony that the deceased was pulled out from under the overturned automobile, that his “skull was bursted open right up there on top of his head,” and that he was dead, was sufficient to establish this fact, although the witnesses who testified were not experts. See Travelers Ins. Co. v. Sheppard, 85 Ga. 751 (8) (12 S. E. 18); Georgia Ry. & Elec. Co. v. Gilleland, 133 Ga. 621 (3) (66 S. E. 944). No objection was interposed to- any of this evidence on the ground that the witnesses were attempting to testify, without a foundation being first laid, as to the proximate cause of death. Special ground 1 of the amended motion for new trial, which contends that there was no competent evidence in the record as to the cause of death, is without merit.
3. Driving while under the influence of intoxicants is a penal offense under Code (Ann.) § 68-1625. One who, while so violating the law, drives so dangerously or recklessly, that as a result of his intoxication he unintentionally kills another human being is guilty of involuntary manslaughter in the commission of an unlawful act. Herrington v. State, 31 Ga. App. 167 (2b) (120 S. E. 554). It is therefore not true, as contended in the second special ground of the motion for new trial, that it is necessary to prove that the defendant, if he was drunk and if as a result of his drunken driving he killed another, must also' have been guilty of violating some other traffic law before a conviction will lie. The charge excepted to instructed the jury that the defendant was charged with running over and killing the decedent while committing two unlawful acts, proof of either of which, if it proximately resulted in death, would support a conviction. This charge was without error.
4. “Before the refusal of a written request to charge the jury will be held to constitute error, it must appear that the request was in itself a correct statement of the law and applicable to the case.” Green v. State, 124 Ga. 343 (8) (52 S. E. 431). The requests to charge embodied in special grounds 3, 4 and [151]*1515, the refusal of which is assigned as error, all contain material inaccuracies. It would have been error to charge that if the speed of the approaching vehicle were 50 to 55 miles per hour the driver of that car would be in violation of the law, the speed limit at the time and place in question being 60 miles per hour. Since there was no evidence suggesting that the collision occurred in a congested business or residential section, a charge relating to speed in such sections would likewise be inapplicable. And a charge instructing the jury that “you are not to conclude” from the circumstance of there being a white or yellow line in the center of the road that the defendant had no right to cross over it, without limiting such a charge to applicable circumstances, would likewise be error as an instruction to the jury to disregard markings placed upon the highway. None of these grounds show reversible error.
5. It is contended in special ground 7 that the verdict and judgment in this case are void because “the arresting officer, Trooper C. R. Floyd, never took movant before a magistrate” and that “any subsequent appearance before a magistrate for the purpose of a commitment hearing and to receive bond provided for in Code § 27-210’ does not satisfy the requirements of Code § 27-212 which require the presence of both the arresting officer and the arrested before said warrant-issuing officer.” Code. (Ann.) § 27-212 provides: “In every case of an arrest without a warrant the person arresting shall without delay convey the offender before the most convenient officer authorized to receive an affidavit and issue a warrant. No such imprisonment shall be legal beyond a reasonable time allowed for this purpose and any person who' is not conveyed before such officer within 48 hours shall be released.” It is a general rule that, although an arresting officer may be liable in damages for false arrest and imprisonment where he detains the defendant in an illegal manner, this is ordinarily immaterial so far as the jurisdiction of the court over the defendant is concerned, after it has been acquired by accusation or indictment, and appearance and pleading by the defendant, in a criminal case. Joiner v. State, 66 Ga. App. 106 (17 S. E. 2d 101). It may be inferred from the allegations of this special ground that the defendant appeared and pleaded not guilty to the indictment without raising any question as to the jurisdiction of the court; also that he did in fact have a commitment hearing and did request and obtain bond; also [152]*152that these things occurred within 48 hours after his arrest, there being no allegation to the contrary. The movant complains only that he was not taken before a magistrate by the person arresting him, which act he says is sufficient to void the conviction against him, although not raised, by him until after he suffered the adverse verdict. This contention is without merit.
6. Special ground 6, complaining that the court erred in failing to charge the law relating to involuntary manslaughter in the commission of a lawful act, is considered in connection with the general grounds.
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Townsend, Judge.
1. (a) Where an indictment charges involuntary manslaughter in the commission of an unlawful act in that the defendant, William French, while driving and operating an automobile on a described public highway amid while meeting an automobile traveling in the opposite direction did “cause said automobile which he was then and there driving and operating to crash into, upon and against the automobile being then and there driven and operated by the said Clayton McDuffie,” thereby causing injuries to Henry McDuffie, a passenger in the McDuffie automobile, from which he died—the following being alleged as unlawful acts: (1) that the accused unlawfully failed to turn the automobile which he was driving and operating to the right of the center of the highway in order to give the approaching motorist one-half of the traveled portion thereof, and (2) that he did then operate said automobile while under the influence of intoxicating liquors—such indictment is not demurrable as failing to set forth any offense against the laws of this State. Code § 27-701; Walters v. State, 90 Ga. App. 360 (83 S. E. 2d 48).
(b) The transcript of the record on appeal duly certified by the clerk will control over any other statement or extract therefrom as to what is the true record in the case. Georgia S. & F. Ry. Co. v. Pritchard, 123 Ga. 320 (1) (51 S. E. 424). There was accordingly no error in overruling a demurrer to the indictment on the ground that it contained certain unintelligible matter, when the indictment, as set out in the certified transcript of the record, shows no< such defect.
(c) Under the clear allegations of the indictment the defendant [150]*150was operating his automobile at the time of the collision..- The special demurrers seeking to attack the indictment on the ground that it does, not show whether the defendant’s automobile was in operation or stationary at the time of impact, are accordingly without merit.
2. Whether a person is alive or dead at the time he is examined by a witness is ordinarily matter of fact and not of opinion. Accordingly, testimony that the deceased was pulled out from under the overturned automobile, that his “skull was bursted open right up there on top of his head,” and that he was dead, was sufficient to establish this fact, although the witnesses who testified were not experts. See Travelers Ins. Co. v. Sheppard, 85 Ga. 751 (8) (12 S. E. 18); Georgia Ry. & Elec. Co. v. Gilleland, 133 Ga. 621 (3) (66 S. E. 944). No objection was interposed to- any of this evidence on the ground that the witnesses were attempting to testify, without a foundation being first laid, as to the proximate cause of death. Special ground 1 of the amended motion for new trial, which contends that there was no competent evidence in the record as to the cause of death, is without merit.
3. Driving while under the influence of intoxicants is a penal offense under Code (Ann.) § 68-1625. One who, while so violating the law, drives so dangerously or recklessly, that as a result of his intoxication he unintentionally kills another human being is guilty of involuntary manslaughter in the commission of an unlawful act. Herrington v. State, 31 Ga. App. 167 (2b) (120 S. E. 554). It is therefore not true, as contended in the second special ground of the motion for new trial, that it is necessary to prove that the defendant, if he was drunk and if as a result of his drunken driving he killed another, must also' have been guilty of violating some other traffic law before a conviction will lie. The charge excepted to instructed the jury that the defendant was charged with running over and killing the decedent while committing two unlawful acts, proof of either of which, if it proximately resulted in death, would support a conviction. This charge was without error.
4. “Before the refusal of a written request to charge the jury will be held to constitute error, it must appear that the request was in itself a correct statement of the law and applicable to the case.” Green v. State, 124 Ga. 343 (8) (52 S. E. 431). The requests to charge embodied in special grounds 3, 4 and [151]*1515, the refusal of which is assigned as error, all contain material inaccuracies. It would have been error to charge that if the speed of the approaching vehicle were 50 to 55 miles per hour the driver of that car would be in violation of the law, the speed limit at the time and place in question being 60 miles per hour. Since there was no evidence suggesting that the collision occurred in a congested business or residential section, a charge relating to speed in such sections would likewise be inapplicable. And a charge instructing the jury that “you are not to conclude” from the circumstance of there being a white or yellow line in the center of the road that the defendant had no right to cross over it, without limiting such a charge to applicable circumstances, would likewise be error as an instruction to the jury to disregard markings placed upon the highway. None of these grounds show reversible error.
5. It is contended in special ground 7 that the verdict and judgment in this case are void because “the arresting officer, Trooper C. R. Floyd, never took movant before a magistrate” and that “any subsequent appearance before a magistrate for the purpose of a commitment hearing and to receive bond provided for in Code § 27-210’ does not satisfy the requirements of Code § 27-212 which require the presence of both the arresting officer and the arrested before said warrant-issuing officer.” Code. (Ann.) § 27-212 provides: “In every case of an arrest without a warrant the person arresting shall without delay convey the offender before the most convenient officer authorized to receive an affidavit and issue a warrant. No such imprisonment shall be legal beyond a reasonable time allowed for this purpose and any person who' is not conveyed before such officer within 48 hours shall be released.” It is a general rule that, although an arresting officer may be liable in damages for false arrest and imprisonment where he detains the defendant in an illegal manner, this is ordinarily immaterial so far as the jurisdiction of the court over the defendant is concerned, after it has been acquired by accusation or indictment, and appearance and pleading by the defendant, in a criminal case. Joiner v. State, 66 Ga. App. 106 (17 S. E. 2d 101). It may be inferred from the allegations of this special ground that the defendant appeared and pleaded not guilty to the indictment without raising any question as to the jurisdiction of the court; also that he did in fact have a commitment hearing and did request and obtain bond; also [152]*152that these things occurred within 48 hours after his arrest, there being no allegation to the contrary. The movant complains only that he was not taken before a magistrate by the person arresting him, which act he says is sufficient to void the conviction against him, although not raised, by him until after he suffered the adverse verdict. This contention is without merit.
6. Special ground 6, complaining that the court erred in failing to charge the law relating to involuntary manslaughter in the commission of a lawful act, is considered in connection with the general grounds. The evidence on the trial of the case authorized the jury to find that the defendant was proceeding slowly down the highway; that he was in a drunken condition and his judgment was impaired thereby; that he noticed his gas gauge was showing “empty” and decided to turn left across the highway into a filling station; that the McDuffie car, approaching from the opposite direction at a lawful rate of speed on its right side of the road, rounded a gentle curve and the driver saw the defendant approaching slowly on his right side of the road, and that the defendant then cut to the left and into McDuffie’s lane of traffic; that McDuffie attempted! to apply his brakes and swerve to the right but the defendant’s car was over three feet into his lane of traffic and he was unable to- avoid hitting him; that the defendant appeared drunk to him; that arresting officers arriving within a half hour found him ini an extremely drunken condition in which he remained for several hours thereafter, and that immediately after the collision the deceased was extricated from under the overturned McDuffie vehicle and found to be dead with his skull crushed. That the evidence is amply sufficient to support the conviction, see Jordan v. State, 68 Ga. App. 139 (22 S. E. 2d 194). Since the issue of manslaughter in the commission of a lawful act without due caution and circumspection was raised neither by the evidence nor by inferences reasonably to be drawn therefrom, the court did not err in failing to- charge on this degree of homicide. Guthrie v. State, 92 Ga. App. 62 (87 S. E. 2d 648); Stone v. State, 78 Ga. App. 555, 556 (51 S. E. 2d 578). While one has the right to turn to the left across -a public highway and into a. private drive (Code, Ann., § 68-1633 (b)) this does not give one the lawful right to' turn-into the lane of traffic of an approaching vehicle, an act prohibited under Code '(Ann.-'}. § ,68-1634, nor [153]*153does testimony regarding such an act create an inference from evidence which would authorize a charge on the offense of involuntary manslaughter in the commission of a lawful act, which probably might produce such a consequence, in an unlawful manner under Code § 26-1009. These grounds are without merit.
Decided February 6, 1959
Rehearing denied February 20, 1959.
D. Lee Churchwell, for plaintiff in error.
Wm. M. West, Solicitor-General, Hal Bell, Assistant Solicitor-General, contra.
The trial court did not err in overruling the demurrers to the indictment and denying the motion for new trial as amended.
Judgment affirmed.
Carlisle, J., concurs. Gardner, P. J., concurs specially.