Bond v. State, 38999

• Decision Date: 13 October 1961
• Docket Number: No. 2,No. 38999,38999,2
• Citation: 104 Ga.App. 627,122 S.E.2d 310
• Parties: G. H. BOND v. STATE
• Court: Georgia Court of Appeals

Page 310

122 S.E.2d 310

104 Ga.App. 627

G. H. BOND v. STATE.

No. 38999.

Court of Appeals of Georgia, Division No. 2.

Oct. 13, 1961.

Syllabus by the Court

1. 'It is a well-settled rule in this State, that the language of an indictment is to be interpreted liberally in favor of the State.' Green v. State, 109 Ga. 536, 540, 35 S.E. 97. The indictment in this case charges that the accused did drive and operate an automobile to the left of the center of a public road. This sufficiently charges the commission of an unlawful act, an essential element of the offense of involuntary manslaughter in the commission of an unlawful act.

2. 'Since, * * * a public highway is one of the places where the offense may be committed, if the indictment or accusation alleges that the offense was committed on a stated 'public highway,' the proof should show that it was a public highway, and in the absence of such proof the evidence would be insufficient to support the verdict.' Jordan v. State, 212 Ga. 337, 92 S.E.2d 528.

3. 'If admissibility of evidence is doubtful, the evidence should be admitted and its weight and effect should be left for the jury's determination.' Manners v. State, 77 Ga.App. 843, 50 S.E.2d 158.

4. 'On a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly distinct, independent, and separate from that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible, unless there be shown some logical connection between the two from which it can be said that proof of the one tends to establish the other.' Bacon v. State, 209 Ga. 261, 71 S.E.2d 615.

5. In the instant case assignments of error on the court's charge on certain principles of law and failure to charge certain principles of law which movant contends were applicable are not here passed on because this case must be retried, and the evidence may differ vastly on the next trial requiring instructions to the jury different in many respects from the charge given on the first trial.

Grady Harold Bond was convicted of involuntary manslaughter in the commission of an unlawful act under an indictment charging that he, '* * * did * * * without any intention so to do, kill one Emma Faye Fortson, a human being, in the peace of the State then and there being, while in the commission of an unlawful act and acts, in driving and operating in a southeasterly direction toward U. S. Highway No. 29 a certain motor vehicle to-wit: (a) One Chevrolet automobile, at a time later than one-half hour before sunrise and earlier than one-half hour after sunset, upon and along 'Salem Church Road,' leading in a northwesterly direction from U. S. Highway no. 29 and intersecting with the Sandy Cross-Royston Road, at Peniel Church, the same being a public road in said county, at a speed greater than and in excess of sixty miles per hour, and the said accused did, (b) drive and operate said automobile to the left of the center of said road from the direction in which said accused was then and there driving and operating said automobile in the manner herein alleged the accused did then and there, with said automobile, strike and hit and run the same into and against the said Emma Faye Fortson, inflicting upon the said Emma Faye Fortson certain mortal wound and wounds of which wound and wounds the said Emma Faye Fortson died.'

The defendant specially demurred to the indictment upon the ground that subdivision (b) of the indictment fails to allege that the road in question was of 'sufficient width' so as to require the defendant to drive his vehicle to the right of the road as required by Code § 68-1633. The trial court overruled the special demurrer. The defendant filed a motion for a new trial, and later, by amendment, added several special grounds. Defendant's motion for a new trial, as amended, was overruled, and the defendant assigns as error the trial court's ruling on the demurrer and the motion for a new trial, as amended.

William O. Carter, Hartwell, for plaintiff in error.

Clete D. Johnson, Sol. Gen., Royston, A. S. Skelton, Hartwell, for defendant in error.

FRANKUM, Judge.

1. The defendant demurred to the indictment on the ground that it does not allege that the road was of sufficient width for the defendant to have driven his automobile upon the right half of the roadway. See Code § 68-1633. 'It is a well-settled rule in this state that the language of an indictment is to be interpreted liberally in favor of the state.' Green v. State, 109 Ga. 536, 450, 35 S.E. 97. 99, supra. Studstill v. State, 7 Ga. 2; DeVere v. State, 45 Ga.App. 330, 164 S.E. 485. An averment in the indictment is that the defendant did 'drive and operate said automobile to the left of the center of said road.' The center of the road is the exact middle thereof, with as much room to the right of center as to the left of center. The clear import of the above-quoted averment is that the defendant, at the time and place in question, drove the automobile on the left side of the road whereby it was completely to the left of the automobile on the left side of the road whereby it was completely to the left of the center of the road. It necessarily follows that the effect of the averment is that said road was of sufficient width for the defendant to have driven his vehicle on the right side of the center of the road.

2. 'Since, * * * a public highway is one of the places where the offense may be committed, if the indictment or accusation alleges that the offense was committed on a stated 'public highway,' the proof should show that it was a public highway, and in the absence of such proof the evidence would be insufficient to support the verdict.' Jordan v. State, 212 Ga. 337, 92 S.E.2d 528, 530, supra.

The accused was charged with the offense of involuntary manslaughter while in the commission of unlawful acts, in that he operated his automobile upon a certain public road known as Salem Church Road at a speed in excess of 60 miles per hour and to the left of the center of the road. Applying the above rule to the instant case, it was necessary for the State to prove that Salem Church Road was, in fact, a public road in order to prove that part of the indictment alleging unlawful acts. Williams v. State, 96 Ga.App. 833, 101 S.E.2d 747. The approved brief of evidence in this case does not show that said road was a public road. As to the methods by which a road may be proved to be a public road see Johnson v. State, 1 Ga.App. 195, 58 S.E. 265; Culver v. State, 40 Ga.App. 273, 149 S.E. 292; Moye v. State, 46 Ga.App. 727, 169 S.E. 59; Knights of Ku Klux Klan v. Fidelity & Deposit Co., 47 Ga.App. 12, 169 S.E. 514. The State contends that this court must take judicial notice of the highways shown on the maps approved by the State Highway Board and filed in the office of the Secretary of State as an authoritative record that the State-aid roads are, in fact, public highways. We agree with this contention (Williams v. State, 96 Ga.App. 833, 101 S.E.2d 747, supra). However, the public road named in the indictment is identified in the evidence only as the 'Salem Church Road' which leads from U. S. Highway No. 29 to another road. The maps filed by the State Highway Department in the office of the Secretary of State showing the State-aid roads in Franklin County do not show a road designated as 'Salem Church Road'. The fact that the road in question is a 'paved road' in Franklin County is not sufficient to prove that such road is a public road. Baker v. State, 92 Ga.App. 60, 87 S.E.2d 644. Under the authority of Williams v. State, 96 Ga.App. 833, 101 S.E.2d 747, supra, and Baker v. State, 92 Ga.App. 60, 87 S.E.2d 644, supra, the verdict in the instant case is not supported by the evidence, and consequently, the trial court erred in overruling the general grounds of the motion for a new trial.

The State contends that the attorney, who represented the defendant during the trial of this case, entered into a stipulation with the solicitor general that the road named in the indictment was, and is, a public road. Thereafter, the defendant's attorney was appointed solicitor general emeritus and, thereupon, withdrew from the case and has since died. Defendant's present counsel prosecuted the appeal after the trial court approved the brief of evidence. Counsel for the State filed with this court a motion suggesting a diminution of the record to show such stipulation. Attached to the motion is a certificate of the trial judge certifying that a stipulation was entered into by the parties at the trial of the case that the road named in the indictment was a public road. However, the motion itself avers: 'The stipulation herein quoted was not incorporated in the brief of evidence transmitted to the Court of Appeals because the State relied upon counsel for the defendant to faithfully abide by the said stipulation and not in any manner contradict the provisions thereof.' Therefore, the certificate of the trial court amounts to no more than a second certificate attempting to alter the approved brief of evidence, which is not permissible. Jones v. State, 64 Ga. 697, 698; Stepp v. Stepp, 195 Ga. 595, 25 S.E.2d 6. See also Kirkland & Son v. Highsmith, 17 Ga.App. 481, 87 S.E. 762; Akin v. Edmonds, 177 Ga. 760, 171 S.E. 272; Fuller v. Fuller, 197 Ga. 719, 30 S.E.2d 600. See also Georgia Procedure & Practice, § 23-16.

As the general grounds of the motion...