Butler v. State

• Decision Date: 14 March 1934
• Docket Number: 10083.
• Parties: BUTLER v. STATE.
• Court: Georgia Supreme Court

173 S.E. 856

178 Ga. 700

BUTLER v. STATE.

No. 10083.

Supreme Court of Georgia

March 14, 1934

Error from Superior Court, Spalding County; Wm. E. H. Searcy, Jr. Judge.

Cliff Butler was convicted of murder, and he brings error.

Affirmed.

BECK P.J., and ATKINSON, J., dissenting.

J. A Darsey, of Griffin, for plaintiff in error.

W. H. Connor, Sol. Gen., of Griffin, and M. U. Yeomans, Atty. Gen., and B. D. Murphy and Jno. T. Goree, Asst. Attys. Gen., for the State.

Syllabus OPINION.

HUTCHESON Justice.

Cliff Butler was indicted for the murder of Clarence Nelms, by running over him with an automobile. The defendant was tried, convicted with a recommendation to mercy, and sentenced to life imprisonment in the penitentiary. His motion for new trial was overruled, and he excepted.

The testimony of Roy Brannan, a witness for the state, was to the effect that he saw the defendant, driving at a high rate of speed, drive his automobile off the pavement near Griffin in Spalding county, and hit the negro boy, Clarence Nelms, who was riding a bicycle along the shoulder of the road and off of the pavement. This witness positively identified the defendant as the driver of the car. Arlin Moore, another witness for the state, testified that he saw the defendant driving his automobile after he had struck and killed the deceased, and that he was running about forty miles an hour. He also testified that he smelled whisky on the breath of the defendant. Harper, chief of police, testified that he examined the defendant's automobile after it had been wrecked, found in one of the fenders a split place in which some human hair was fastened; and that the hair looked like hair from the head of a negro. Roy Brannan testified, on redirect examination, that he saw "Mr. Butler run his car off the pavement on the ground and hit him" (the negro boy) and that the defendant then speeded up his automobile. Officer Williams testified to the hair being in the fender of the automobile, and also testified that the defendant was drunk. Wesley Thomas testified that he witnessed the killing, and that the driver of the automobile, "just before he got to the negro, he run clear across the road and off the pavement and knocked the negro over." The evidence for the state was to the effect that the car which struck the deceased was a Chevrolet, and evidence for the defendant that he did not own such a car; and there was testimony to the effect that the driver of the car was not the defendant. There was ample evidence, however, to authorize the jury to find the defendant guilty.

1. The following charge of the court to the jury was assigned as error, as being inapplicable to the case: "The law provides that no person shall operate a motor vehicle upon any public street or highway at a speed greater than is reasonable and safe, having due regard for width, grade, character, traffic, and common use of a street or highway, or so as to endanger life or limb or property in any respect whatever; but said speed shall not exceed those tabulated below; and there are several tabulated, but the one with reference to the speed of a passenger-car is not exceeding 40 miles per hour." This charge is in substance section 11 of the Motor-Vehicle Act of 1927 (Ga. L. 1927, pp. 226, 236), and is applicable to the facts of this case.

2. The following charge of the court to the jury is assigned as error, as being inapplicable to the case: "The law further provides that an operator shall reduce the speed at crossings or intersections of highways, and at other places not necessary to mention in reference to this case." This charge also is in substance a provision of section 13, subd. i, of the Motor-Vehicle Act of 1927, supra, and is applicable to the facts of the case.

3. Special ground 3 is as follows: "That the court erred in giving the following charge as the law in said case: 'The law further provides that no person shall operate a motor vehicle upon any public street or highway while under the...