Cain v. State

• Citation: 190 S.E. 371,55 Ga.App. 376
• Decision Date: 04 March 1937
• Docket Number: No. 25896.,25896.
• Parties: CAIN . v. STATE.
• Court: United States Court of Appeals (Georgia)

55 Ga.App. 376

190 S.E. 371

CAIN .

v.STATE.

No. 25896.

Court of Appeals of Georgia,

Division No. 1.

March 4, 1937.

Syllabus by the Court.

1. Criminal negligence is something more than ordinary negligence which would authorize a recovery in a civil action. Criminal negligence as used in our Criminal Code is the reckless disregard of consequences, or a heedless indifference to the rights and safety of others and a reasonable foresight that injury would probably result.

2. It is criminal negligence intentionally, willfully, or wantonly, to violate a penal automobile statute designed for the protection of human life and limb, which violation proximately results in injury or death.

3. It is also likewise criminal negligence to violate said penal statute even though the violation is inadvertent or unintentional, if the violation be accompanied by a recklessness (which amounts at least to gross negligence, this being something more than ordinary negligence), or is under circumstances from which probable death or injury to others might have been reasonably anticipated (that is, if the act is a violation dangerous in itself); and if injury or death proximately ensues, there would be criminal responsibility.

4. But an inadvertent or unintentional violation of the penal automobile statute, not accompanied by recklessness (that is, at least, gross negligence, which is something more than ordinary negligence), and not under circumstances from which probable death or injury to others might have been reasonably anticipated (that is, if the act is a violation not dangerous in itself), is not criminal negligence.

5. Contributory negligence, as such, has no place in the law of crime. However, the behavior of the person injured or killed may have a material bearing on the question of the defendant's guilt, but if the criminal negligence of the latter is found to be the cause of the death, he is criminally responsible whether or not the decedent's failure to use due care contributed to the injury. The case is one of the State against the defendant, and not one of a party seeking damages against the defendant. In some criminal cases, the conduct of the decedent, whether negligent or not, is material to the extent that it bears on the question whether under all the circumstances of the case the defendant was negligent, or, if negligent, whether the decedent's negligence was the sole proximate cause of the injury, or whether the injury or death resulted from an unavoidable accident.

6. In the prosecution for involuntary manslaughter in the commission of an unlawful act for the killing of a pedestrian on the highway, alleged to have been caused by the defendant's criminal negligence in the operation of his automobile, a charge that if the defendant was guilty of violating a statute enacted for the safety of persons on the highway, and that if such violation proximately resulted in death, that the defendant would be guilty of manslaughter is held erroneous as giving the test of civil liability rather than that of criminal responsibility.

7. The indictment finding. "no bill" against a third party was inadmissible as evidence against the defendant.

8. The jury having convicted the defendant of the greater offense, involuntary manslaughter in the commission of an unlawful act, a charge on the lesser offense involuntary manslaughter in the commission of a lawful act, did not injuriously affect him. Robinson v. State, 109 Ga. 506, 34 S.E. 1017; Davis v. State, 114 Ga. 104, 107, 39 S.E. 906; Smith v. State, 161 Ga. 421, 429, 131 S.E. 163; Cain v. State, 53 Ga.App. 331, 185 S.E. 615.

Error from Superior Court, Gwinnett County; W. W. Stark, Judge.

Baxter Cain was convicted of involuntary manslaughter in the commission og an unlawful act, and he brings error.

Reversed.

See, also, 53 Ga.App. 331, 185 S.E. 615.

The defendant was convicted of involuntary manslaughter in the commission of an unlawful act. His motion for new trial was overruled and he excepted. The evidence considered in its most favorable light to the State was to the effect that the defendant was driving north from Lawrenccville in the direction of Winder on the wrong side of the road, at night, without lights, in a Ford truck loaded with wood, and was intoxicated, and when he reached a distance of about 100 or 125 feet from the top of a hill, a car driven south by one Bowden from the direction of Winder came over the hill and struck the truck of the defendant, disabling it, and blocking the right side of the road as you travel south from Winder. In a few minutes the sheriff of Banks county (the wreck having occurred in Hall county) came along going north toward Winder, passed the wrecked truck, went on up the road a sufficient distance so as not to interfere with traffic, returned to the scene of the wreck, and there told the defendant, the driver of the truck, that they had better get it out of the road or somebody would be hurt. Whereupon,

the defendant replied "let the d----fools

go if they haven't got any more sense than to run in to it." However, he went on off to get help to remove the truck, and in a few minutes another car driven by Peek came over the top of the hill, coming south from the direction of Winder. The driver of the second car testified that the wreck was so close to the top of the hill that his lights had not had sufficient time to come down and focus upon the road, and that he was so close on the wrecked car that he struck it, after putting on his brakes, and knocked it over on the sheriff who was standing near by, and killed him. a deputy sheriff, who was with the sheriff at the time and standing near the wrecked car when the second car came over the hill, saw it was about to hit the wrecked truck, and called out to the sheriff to look out, that another car was going to hit it. The deputy sheriff and the sheriff's son jumped off of the paved section of the road and were uninjured. The defendant and his witnesses denied that he was drunk, denied that he was running at night without lights, and denied that he was running on the wrong side of the road; but said that the first car struck him on his side of the road and drove his car over on the wrong side of the road, and that when he saw it was impossible to get off the road he left to get help, and that while he was gone the sheriff was killed.

The court, after having charged that certain acts would be a violation of the statutory law of Georgia, which he denominated as "the law of the road, " charged the jury as follows: "Now applying that law of the road to the case now on trial if you should behave beyond a reasonable doubt from the testimony of the witnesses and the statement of the defendant that the death of Owen McCoy was caused by the running and operation of the truck or automobile in question by the defendant's refusal and failure to comply with the law of the road, as already stated to you, and that the death of Owen McCoy was caused by such violation or was the cause of his death by such operation of the truck or automobile the defendant would be guilty of the offense of involuntary manslaughter in the commission of an unlawful act."

W. L. Nix, of Lawrenceville, for plaintiff in error.

Clifford Pratt, Sol. Gen., of Winder, for the State.

MacINTYRE, Judge.

Did the trial court correctly observe the difference between civil liability and criminal responsibility? Did the charge clearly define civil negligence in the law of torts, and then add that criminal negligence in the law of crimes is something more than actionable negligence in the law of torts? Preliminary to answering these questions, it might be helpful to try to draw the line, shadowy though it may be, which separates the two.

1. "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." Code, § 26-201. The degrees of negligence are as follows: (1st) "Slight negligence.-- In general, extraordinary diligence is that extreme care and caution which very prudent and thoughtful persons exercise under the same or similar circumstances. * * * the absence of such diligence is termed slight negligence." Code, § 105-202. (2d) "Ordinary negligence.-- In general, ordinary diligence is that degree of care which is exercised by ordinarily prudent persons under the same or similarcircumstances. * * * The absence of such diligence is termed ordinary negligence." Code, § 105-201. (3d) "Gross negligence.--In general, slight diligence is that degree of care which every man of common sense, howsoever inattentive he may be, exercises under the same or similar circumstances. * * * The absence of such care is termed gross negligence." Code, § 105-203. (4th) Willful and wanton negligence. In the case of the first two of these degrees of negligence, contributory negligence, when properly pleaded and established, defeats a recovery in the law of torts. In the third of these degrees of negligence, where a guest is injured, the rule is that contributory negligence, as such, does not defeat a recovery in a civil action, and in the fourth of these degrees, contributory negligence, as such, does not defeat a recovery in the...