Collins v. State

Decision Date05 December 1941
Docket NumberNo. 29099.,29099.
Citation18 S.E.2d 24
PartiesCOLLINS . v. STATE.
CourtGeorgia Court of Appeals

Syllabus by the Court.

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.

2. Where the negligent act of the driver of an automobile causing the death of another was lawful, there is no criminal responsibility unless there was criminal negligence in its performance.

3. Criminal negligence is something more than ordinary negligence which would authorize a recovery in a civil action.

4. The act or acts proved in the instant case included all the elements of both the lower and the higher grades of involuntary manslaughter, and the defendant could have been indicted for and convicted of either and the verdict finding her guilty of the lower grade (involuntary manslaughter in the commission of a lawful act in an unlawful manner) will not be disturbed on the ground that it was contrary to the testimony.

5. The defendant was convicted of the lowest grade of involuntary manslaughter where death results from the collision of automobiles. The element differentiating the lowest grade of involuntary manslaughter from a noncriminal killing is that in the former the negligence must be more than ordinary negligence which would be sufficient to authorize a recovery in a civil action, and must go to the extent of being gross or culpable negligence, whereas in the latter there is an absence of culpable neg ligence in the performance of the lawful act which resulted in the death of a human being,

6. The evidence authorized a finding that, in attempting to pass the automobile travelling in the same direction, the defendant, under the circumstances of this case, showed a purpose to take a known chance of perpetrating an injury on another, in that she knew that automobiles were likely to be approaching on the highway from the opposite direction, and was so indifferent to the rights of others that she acted as if they did not exist and that she was thus guilty, not merely of ordinary negligence, but of a higher degree thereof, to wit, gross or criminal negligence.

7. The evidence supported the verdict of guilty of the lowest grade of involuntary manslaughter.

8. It has been repeatedly held by this court and the Supreme Court that in charging on the weight to be given the defendant's statement to the jury in the trial of a criminal case it is better to follow the statute and there leave the matter. "The legislature has made the matter as clear as can the judiciary."

9. It is a permissible and correct form of charge for the judge to enumerate the acts and conduct constituting all the essentials of the offense charged, and to instruct the jury that, if proved beyond a reasonable doubt, these will be sufficient to authorize a conviction, but that a failure to prove any one of the essentials will require an acquittal.

10. An admission by the defendant that she was driving the automobile that collided with the automobile in which the deceased was riding and the deceased was killed in the collision, or died as a result thereof, is to be taken as direct, not circumstantial, evidence. The defendant's conviction of manslaughter did not depend wholly on circumstantial evidence, and in the absence of a request the court did not err in failing to charge the law of circumstantial evidence.

Error from Superior Court, Laurens County; R. Earl Camp, Judge.

Jessie Mae Collins was convicted of involuntary manslaughter in the commission of a lawful act without due caution and circumspection, and she brings error.

Affirmed.

E. L. Stephens, of Dublin, for plaintiff in error.

Emory S. Baldwin, Jr., of Dublin, and J. Eugene Cook, Sol. Gen., of Wrightsville, for defendant in error.

MacINTYRE, Judge.

Jessie Mae Collins was convicted of involuntary manslaughter in the commission of a lawful act without due caution and circumspection. Her motion for new trial was overruled and she excepted.

1. The evidence for the State authorized a finding that at the time in question the defendant was driving a pick-up truck. A few minutes before the collision which resulted in the death of H. L. Hodges, the defendant passed a car driven by William S. Mcintosh. He estimated the speed of the truck at about seventy miles per hour. At the time of the collision the defendant was attempting to pass a gasoline truck on a little hill, and was in the "dead center" of the left traffic lane according to the direction in which she was travelling. The car in which the deceased was riding had pulled fourteen inches off the road on its right side at the time of the collision, apparently attempting to avoid the collision.

Where the negligent act of the driver of the automobile causing the death was lawful, there is no criminal responsibility unless there was criminal negligence in its performance. Wharton's Homicide, 681, § 446(11). "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." Cain v. State, 55 Ga.App. 376, 190 S.E. 371, 372. "And to make a lawful act carelessly performed, resulting in death, a criminal one, the carelessness must have been gross, implying an indifference to consequences." Wharton's Homicide, 681, § 446(12). "But the mere fact that an accident happened through an honest misapprehension of the surrounding circumstances, or by reason of a mistake in judgment, will not excuse the person whose act caused it, where such misapprehension or omission resulted from negligence in failing to observe and obey any rule or precaution which it was his duty to obey and observe." Id. 682, § 446 (15).

From the evidence in this case the jury were authorized to find that the defendant, in undertaking to pass an automobile moving in the same direction collided with another car on the defendant's left side of the road. Our statutes define manslaughter generally as consisting of "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." Code, § 26-1009. Thus, a lawful act done in an unlawful manner and resulting in a death is prohibited by a positive law. We have a statute designed for the protection of human life and limb which makes it a criminal offense for the driver of an automobile to pass another car going in the same direction where the way ahead is not clear of approaching traffic. Code, §§ 68-303(d), 68-9908. The defendant contends that while the evidence might have authorized a conviction of involuntary manslaughter in the commission of an unlawful act, to wit, violating Code, § 68-303 (d), yet it did not authorize a conviction of involuntary manslaughter in the commission of a lawful act in an unlawful manner. The mere going on the left side of the road in passing another automobile going in the same direction is not unlawful, but this act may be done in violation of the special statute, Code, § 68-303 (d), or it may be done by committing a lawful act in such a careless and negligent way as to bring it within the statute defining involuntary manslaughter in the commission of a lawful act in an unlawful manner Code, § 26-1009. The...

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2 cases
  • Southern Ry. Co v. Garland
    • United States
    • Georgia Court of Appeals
    • February 21, 1948
    ...see Union Banking Co. v. Jenkins, 147 Ga. 573(2), 94 S.E. 998; Summer v. State, 55 Ga.App. 185(2), 189 S.E. 687; Collins v. State, 66 Ga.App. 325, 329(3), 18 S.E.2d 24. In Williamson, Adm'r, v. Walker, Ex'r, 187 Ga. 603(1), 1 S.E.2d 718, the court said: " * * * where the charge as given by ......
  • Edmonds v. State, 37512
    • United States
    • Georgia Court of Appeals
    • January 15, 1959
    ...the defendant of a crime, must be of a greater degree than mere negligence authorizing the recovery in a civil action. Collins v. State, 66 Ga.App. 325(3), 18 S.E.2d 24; Hardrick v. State, 96 Ga.App. 670, 671(1), 101 S.E.2d 99; Geele v. State, 203 Ga. 369, 375, 47 S.E.2d 283. The portions o......

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