Cole v. State, No. 29757.

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: MacINTYRE
• Citation: 22 S.E.2d 529
• Docket Number: No. 29757.
• Decision Date: 20 October 1942
• Parties: COLE. v. STATE.

22 S.E.2d 529

COLE.
v.
STATE.

No. 29757.

Court of Appeals of Georgia,
Division No. 1.

Oct. 20, 1942.

[22 S.E.2d 530]Syllabus by the Court.

1; Where the grand jury list had on it the names R. P. Austin, H. R. Kennedy, and J. W. Carrington, Jr., and the indictment had on it the names R. P. Auston, H. R. Kanady, and J. W. Carrington, the indictment should not have been quashed on plea in abatement where the evidence on this plea left no doubt of the identity of the persons. Any slight mistake in the names was immaterial.

2. In the light of the facts the plea in abatement was bad. The question was one of identity of persons, not of names. The presumption is that the grand jury was properly constituted and the defendant must show that it was not. So far from the presumption being overcome, it was established by the evidence on the plea in abatement, beyond a doubt, that the persons in question whose names so nearly corresponded, and who found the bill of indictment against the defendant, were the same persons who had their names in the grand jury box and on the list of grand jurors of the county.

3. The demurrer alleged facts which were not set forth in the indictment which it sought to attack. It thereby became speaking in character, and was properly overruled. Arthur v. State, 146 Ga. 827(2), 92 S.E. 637.

4. "There can be no murder without malice express or implied."

5. Code, § 26-1009 provides: "Involuntary manslaughter shall consist in the killing of a human being without any intention to do so, but in the commission of an unlawful act, or a lawful act which probably might produce such a consequence, in an unlawful manner: Provided, that where such involuntary killing shall happen in the commission of an unlawful act which, in its consequences, naturally tends to destroy the life of a human being, * * * the offense shall be deemed and adjudged to be murder." This section as it relates to murder is founded on the principle of implied malice.

6. An indictment seeking to allege the offense of murder as defined in Code, § 26-1009, which alleges there was no intention to kill, and yet alleges that the involuntary killing happened "in the commission of an unlawful act which, in its consequences naturally tends to destroy the life of a human being, " and in so alleging employs language which alleges the equivalent of implied malice, does not subject the indictment to the demurrer "that while said indictment undertakes to charge the offense with murder against J. H. Cole and alleges malice in the commission of a homicide, it distinctly expresses negative matters by alleging that the said J. H. Cole had no intention of killing."

Error from Superior Court, Barrow County; Clifford Pratt, Judge.

J. H. Cole was convicted of involuntary manslaughter in commission of an unlawful act, and he brings error to overruling of motion for new trial.

Affirmed.

The defendant was indicted for murder and convicted of involuntary manslaughter in the commission of an unlawful act. He moved for a new trial, and to the overruling of his motion he excepted.

[22 S.E.2d 531]

J. N. Rainey and Joe Quillian, both of Winder, for plaintiff in error.

Hope D. Stark, Sol. Gen., of Lawrenceville, for defendant in error.

MacINTYRE, Judge.

1. The defendant filed a demurrer and a plea in abatement, both of which sought to attack the indictment on the ground that "certain persons who found the bill against the defendant were not persons who had their names in the grand jury box and on the list of the grand jurors of this county, namely, J. W. Carrington, H. R. Raniday, and R. P. Auston, and without their names there were only 17 grand jurors who returned the indictment." We will consider these questions in inverse order. We will first consider the plea in abatement. The evidence on the trial of the plea showed that the names, R. P. Austin, H. R. Kennedy, and J. W. Carrington,...