Payne v. State

40 S.E.2d 759, 74 Ga. App. 646, 1946 Ga. App. LEXIS 605

• Court: Court of Appeals of Georgia
• Decided: December 4, 1946
• Docket: 31310.
• Status: Published

Opinions

MacIntyre, J.

We are satisfied that the jury were warranted in concluding from the evidence that the defendant, while under the influence of some intoxicant, drove his automobile over a public highway of this State at a rate of speed greater than fifty-five miles per hour, in violation of the speed law of Georgia, and over a street in the City of Lavonia in violation of the ordinance of that city prohibiting the driving of motor vehicles at a rate of speed greater than thirty miles per hour, past a stop sign and into a broad street intersection in a business part of said City of Lavonia, without blowing his horn, or putting on his brakes or slowing down or stopping before entering said intersection; and that he ran into the right side of an automobile driven by M. E. Shirley at a time when® said intersection was clearly visible to the defendant, and hurled Shirley’s car fifty-nine feet down the highway which the defendant was traveling, and injured one of the occupants of Shirley’s car slightly and another occupant of said car so seriously that he was practically unconscious for eleven days and completely lost his mind.

We think that the facts of this ease bring it well within the following rule: “The presumption of malice may arise from a reckless disregard of human life; and ‘there are wanton or reckless states of mind which are sometimes the equivalent of a specific intent to kill, and which may and should be treated by the jury as amounting to such intention when productive of violence likely to result in the destruction of life, though not so resulting in the given instance. Gallery v. State, 92 Ga. 464 (2) (17 S. E. 863).’” Dennard v. State, 14 Ga. App. 485, 488 (81 S. E. 378). The facts in the Dennard case disclose that the defendant, approaching the person assaulted from the rear, turned and struck said person when he was a few feet from the road and seriously injured him. In that case the court stated that the indictment charged the defendant with assault with intent to murder, “in that he ran an automobile . . over one W. H. Morgan on a public road, with intent to kill,” and that the motion for a new trial based solely on the statutory grounds was overruled. On page 488 of that decision the court also said: “This is a very peculiar case. It is not shown that the defendant had any ill feeling for the man alleged to have been assaulted; no reason appears why he should have wished to run the man down on a public highway; there is no evidence that the machine became unmanageable or skidded, and no explanation of his conduct is apparent unless it was actuated by a reckless disregard of human life.”

In Chambliss v. State, 37 Ga. App. 124 (139 S. E. 80), the court quotes from the Dennard case, supra, as follows: “‘A reckless disregard of human life may be the equivalent of a specific intent to kill; and whether it existed in this case was a question for the jury.’ And in the opinion in that case (p. 488) it is said: ‘The presumption of malice may arise from a reckless disregard of human life;’ and ‘there are wanton or reckless states of mind which are sometimes the equivalent of a specific intent to kill, and which may and should be treated by the jury as amounting to such intention when productive of violence likely to result in the destruction of life, though not so resulting in the given instance.’” And in the Chambliss case the court in its concluding paragraph stated: “There was ample evidence to authorize the jury to find that the defendant; while under the influence of intoxicating liquor, was driving his car at an unlawful rate of speed, in a reckless manner, and with utter disregard of the lives and safety of others. It supports the verdict rendered.” In Myrick v. State, 199 Ga. 244, 248 (34 S. E. 2d, 36), Gallery v. State, supra, Dennard v. State, supra, and Chambliss v. State, supra, are cited with approval. In this connee tion, see Powell v. State, 193 Ga. 398 (18 S. E. 2d, 678). Huntsinger v. State, 200 Ga. 127 (36 S. E. 2d, 92), and Smith v. State, 200 Ga. 188 (36 S. E. 2d, 350), cited by the defendant, distinguish the line of cases where the defendant was running at a reckless rate of speed in an intoxicated condition, and the case then under consideration in which the defendant was not in an intoxicated condition.

The instant case comes within the rule stated under that line of cases where the defendant was in an intoxicated condition. The jury here was authorized to find the defendant guilty of assault yvith intent to murder

The judge charged the jury as follows: (“The offense charged in the indictment is that of assault with intent to murder. Murder is the unlawful killing of a human being, in the peace of the state, by a person of sound memory and discretion, with malice aforethought, either express or implied. An assault with intent to murder is an assault with a weapon, as it is.used at the time, is likely to kill, and an assault without justification or mitigation, and an assault under such circumstances that, if death had resulted, it would have been murder, also with the intent and purpose on the part of the assailant at the time of the assault to kill and murder the person assaulted.”)

[“The specific intent to kill is an essential ingredient of the offense of assault with intent to murder. The law does not impute the intention to kill where death does not ensue.

“Intent is a question for the jury and is ordinarily ascertained by acts and conduct,.and the law presumes every unlawful act to have been criminally intended unless the contrary appears. Intent, gentlemen, may be shown in many ways, provided the jury find it existed from the evidence produced before them. It may be inferred from the proven circumstances or by acts and conduct, or presumed when it is a natural and necessary consequence of the act.

“Gentlemen, there are wanton and reckless states of mind which are sometimes equivalent to a specific intent to kill, and which may, and should be, treated by the jury as amounting to such intention when such violations of law are likely to produce death.”]

“I want to read to you now the definition of a crime in this State and I am reading from the Code of the State of Georgia. Here is the definition of a crime: A crime or misdemeanor shall consist in a violation of a public law in the commission of which there shall be a" union or joint operation of act and intention, or criminal negligence.”

In special ground 1, the defendant excepts to the part of the charge above quoted enclosed in brackets. The principal assignment of error in his special ground 1 is that the court “instructed the jury in said charge that intent was presumed when it is a natural and necessary consequence of the act,” in violation of the well-known rule laid down in Gilbert v. State, 90 Ga. 691, 692 (1) (16 S. E. 652), that the existence of an intent to kill in a case of assault with intent to murder “is matter of fact to be ascertained by the jury from all the evidence before them, and not matter for legal inference or presumption from only a part of the evidence, or even from the whole of it.”

In view of the explicit statement contained in this excerpt enclosed in brackets, that “the law does not impute the intention to kill where death does not ensue,” and the further instruction that “intent is a question for the jury,” and considering the charge as a whole, the objection urged is not ground for a new trial.

Neither do we think that there is any merit in subsection (b) of special ground 1, which alleges that the charge was “misleading and confusing to the minds of the jury, because said charge mixed and mingled the law of murder with that of assault with intent to murder on the issue of intent.”

In subsection (c) of the above ground, it is insisted that “said charge wherein the court instructed the jury that the law presumes every unlawful act to have been criminally intended unless the contrary appears was incorrect,” and eliminated the defendant’s contention “that the injury was unintentional on his part.” The court charged the defendant’s main defense fully and fairly, and there was no request for any additional charge, and the charge was not erroneous for the reason above stated or for any other reason set out in subsection (c) of special ground 1.

Subsection (d) of this special ground is essentially the same as that contained in the first subsection of that ground, and there is no merit in that objection. '

The principal criticism made in special ground 2 to the part of the above-quoted charge enclosed in parentheses is that “the court failed to instruct the jury that such intent to kill would have to be done with malice, either express or implied.” It is also insisted that the above charge eliminated the contention of the defendant that the injuries inflicted were unintentional and done wholly without malice. The charge as a whole was sufficient to convey the meaning and application of the principles of law which these objections urged were eliminated. This special ground shows no cause for reversible error.

In special ground 3, the exception is that the charge “excluded from the minds of the jury all proven facts established by the defendant’s witnesses.” This ground is not meritorious.

In special ground 4, exception was taken to the failure of the court to charge accidental homicide known as Code, § 26-404. No request was made for such an instruction.

The failure of the judge in an assault with intent to murder case to charge the jury the provisions of this Code section—“A person shall not be found guilty of any crime or misdemeanor committed by misfortune or accident, and where it satisfactorily appears there was no evil design, or intention, or culpable neglect”—in express terms, when it clearly appears from the charge that the jury were informed that, if they found the contentions of the accused which were stated with reference to the concrete to be true, they must return a verdict of not guilty, will not be reason for granting a new trial. Nix v. State, 120 Ga. 162 (47 S. E. 516); Gilstrap v. State, 72 Ga. App. 172 (2) (33 S. E. 2d, 525); Martin v. State, 57 Ga. App. 346 (195 S. E. 313); Cox v. State, 105 Ga, 610 (31 S. E. 650).

The defendant contends here that his negligence, if any, was not the proximate cause of the collision, but that the negligence of the driver of the other automobile involved in the collision, in driving his car into the intersection of the streets in question, was the sole proximate cause of the collision, but did not request a charge on accident. Travelers Ins. Co. v. Anderson, 53 Ga. App. 1 (184 S. E. 813); Webb v. State, 149 Ga. 211 (8) (99 S. E. 630); Savannah Electric Co. v. Jackson, 132 Ga. 559, 563 (64 S. E. 680); Mangum v. State, 5 Ga. App. 445 (2) (63 S. E. 543).

The instant case is differentiated from that-of Smith v. State, 200 Ga. 188 (supra), in that there the language of the charge, when considered as a whole, was not sufficient to convey the meaning and application of the Code, § 26-404, whereas in the instant case the charge as a whole was sufficient to convey the meaning and application of the principles of such Code section.

In special ground 5, error is alleged because the court allowed Tom Ed Maxwell to testify that in his opinion Shirley had the right of way at the intersection. The witness stated the facts on which he based his conclusion. Even if it was erroneous to admit such evidence, it is also true that State Trooper Joe Brown testified that he thought Shirley’s automobile had the right of way, and the record shows no objection to Brown’s testimony. We hold that the ground is not meritorious..

There is no merit in the contention in special ground 6 that the court erred in failing to charge the law of involuntary manslaughter in the commission of a lawful act in an unlawful manner. The court charged the law of assault and battery, the lesser offense, as well as the law of assault with intent to murder.

Judgment affirmed.

Broyles, G. J., and Gardner, J., concur.