Cupp v. State, 41218

Decision Date21 May 1965
Docket Number3,No. 41218,Nos. 1,2,41218,s. 1
Citation111 Ga.App. 722,143 S.E.2d 197
PartiesJames W. CUPP v. The STATE
CourtGeorgia Court of Appeals

Syllabus by the Court

1. (a) Where there is no assignment of error upon the refusal of the court to give a requested charge in its exact language, but merely an assignment that there was a refusal to give the charge, the only question raised is whether the request was apt and correct and, if so, whether is was substantially covered by the general charge.

(b) It is not error to refuse to give a requested charge which is not apt, legal, correct, precisely adjusted to some principle involved in the case and authorized by the evidence.

(c) Where, under the circumstances referred to in (a) the request is substantially covered in the general charge, denial of the request is not error.

2. (a) Where evidence is provisionally admitted over objection and there is no further objection or motion to rule it out the objection made at the time of the provisional admission of it is waived.

(b) Where a witness relates facts upon which his opinion is based, the opinion is admissible whether the witness is an expert or not.

3. The evidence was ample to support the verdict. The general grounds of the motion for new trial are without merit.

Upon an indictment charging the defendant, James Wayne Cupp, with murder by an automobile, he was tried and convicted of the offense of involuntary manslaughter.

The evidence disclosed that at about midnight the deceased, Albert Crowe, went in his Renault car to get his wife when she got off from work at the Kenyon & Southern Mill in Rossville. He parked the car in the mill parking lot until his wife came and had difficulty in starting it for leaving. The two of them pushed it out into the street. It caught up and started as they left the lot, but stopped again. They started pushing again, Mr. Crowe at the left side with the door open so that when the car picked up enough momentum he could jump in and engage the gears for starting the motor, while Mrs. Crowe pushed from the rear. They were moving along the right side of Williams Street near the shoulder lying between the paved portion of the street and a ditch--going in the direction of town. There were indications that the battery was giving trouble. Both Mr. Crowe and his wife became tired from the effort of pushing the car and stopped for an interval of rest. He was either sitting on the left front fender or leaning against it, while Mrs. Crowe was at the back of the car. There was a street intersection a short way ahead and a street light hung directly over it that lighted up the area, including that where the Crowes and their car were stopped. Mrs. Crowe saw a vehicle approaching from the opposite direction on Williams Street traveling on its wrong side of the street--the same side on which they were located. She apprehended that the driver was over on that side intending to make a left turn at the intersection, but when she saw that he was coming on through the intersection approaching their car head-on, she ran toward and fell into the ditch seeking a place of safety.

The approaching car had its headlights on. When it got to a point near the Renault it suddenly swerved to the left, but struck the left front of the Renault and Mr. Crowe. The Renault was turned completely around. Mr. Crowe was badly mangled, carried some distance down the street until the car turned over into the ditch, and was killed by the blow of the car driven by the defendant, Cupp. There was no other traffic anywhere in sight.

In his unsworn statement the defendant admitted that he had purchased a pint of Vodka 'that night some time' with money that he borrowed from a friend at a filling station, but denied that he drank any of it. The bottle, which he admitted was in a paper sack in the car at the time Mr. Crowe was struck and killed, was partially empty, he explained, because he had given his friend, Doc Brown, a drink from it and Brown had, additionally, poured another drink into a container and kept it. Policeman Griffin, who made an investigation of the matter shortly after the occurrence, testified that he found a Vodka bottle, partially empty, and a Coca Cola bottle on the floorboard of the Cupp vehicle and that when he arrested Cupp later that night he asked him whether he had been drinking and how much he had drunk. 'He said he had gone and bought some Vodka earlier that day and drank that, and some time during the day he'd gone back and bought some--he'd made two trips.'

The defendant had been taking valium, a tranquilizing drug, which a doctor had prescribed for him some four days prior to this occasion. The druggist who filled the prescription testified that taking it was calculated to make one drowsy, might make him have double vision, and that drinking any alcohol in connection with or after taking it would greatly accentuate its effect, that because of this one taking the drug should avoid any drinking of alcohol and should avoid driving a car, and that if one taking the drug was experiencing drowsiness, or double vision it was an effect that he should recognize. Directions on the bottle, in accord with the doctor's prescription, were that the defendant should take one pill before each meal and one at bedtime.

Mrs. Magin, in whose home the defendant visited during the afternoon before the collision occurred, testified that he was taking the pills two at a time. She identified the bottle as being the same he had with him and from which he took the pills--'some tablets that Dr. Simonton had prescribed.' To the question, 'Now, he never did take those pills other than the way the doctor told him to, did he?' she replied, 'Sure he did.' 'Took them differently?' 'Yes.' She took a half of one of the tablets herself and it 'almost put me to sleep in about three minutes.' She testified that Cupp was not drunk that afternoon and that she smelled no liquor on his breath but that when he came he 'talked real drowsy and sleepy,' and that after taking some pills he lay down and slept hard for about 25 minutes, perspiring freely. She had difficulty in waking him, but did so and he left the house about 10 minutes of 5 o'clock. She talked with him over the telephone at about 11 that night and noticed that he then talked in a very drowsy manner.

A service station operator testified that Cupp was at his place during the afternoon and evening of that day, that he was taking the pills two at a time, while there and that he warned the defendant that he was taking too many of the pills. The defendant had a 'wild look' about his eyes. Although he had a pint of Vodka in the car and gave the service station operator two drinks from it, the defendant drank none of it while he was there.

In his statement the defendant said that he started taking the pills after getting the prescription filled, and then 'just started taking more and more of them. I had taken several of the tablets that day. I don't know how many.' He said that he had not been warned of the drug's effect by the doctor or the druggist, nor had he been advised that he should not drive a car when taking it. He asserted that while driving, prior to the collision, 'I was sleepy, nervous and emotionally upset.' Concerning what happened when he approached the place where he struck Mr. Crowe and the Renault car, he related: 'Q. Do you remember approaching while you were driving your automobile, Williams Street, do you remember something that happened there? A. Well, I just saw a man out in the road, and I cut my car the other way. Q. Did you see any lights on? A. No sir. Q. Did you see a--do you remember seeing another car? A. I didn't see a light, no sir. Q. You saw a man out in the road doing what? A. Yes, sir he just waved his hands like that (demonstrating). Q. Do you remember hitting something in the road? A. No, sir. Q. Do you remember having a wreck? A. No, Sir. Q. What is the next thing that you do remember, what had happened? A. Well, all I can truthfully say is I remember what happened is when Mr. Griffin---- Q. You remember what? A. Mr. Griffin and Ralph Jones came to the house. Q. Do you remember when they came to the house? A. Yes, sir. Q. Do you remember what happened to the period of time you walked or ever how you got to your home? A. No, sir. I don't. Q. Do you remember running over anyone, son? A. No, sir.'

A request to charge, timely submitted, was: 'When a person is suddenly put in the position of peril by the negligence of another, and where, under the circumstances, the emergency is so great that they have to act without having time to think, then a person confronted with such emergency is not held to as strict accountability as a person who has ample time to consider the circumstances and the situation.' The request was denied, but the charge as given included the following: 'A person shall not be found guilty of any crime or misdemeanor committed by misfortune or accident, and where it satisfactorily appears that there was no evil design or intention or culpable neglect,' and 'I charge you that the mere fact that you may find from the evidence that the defendant was negligent in the operation of the automobile, if you do so find, without more, would not authorize you to find him guilty of any crime.'

To the overruling of an amended motion for new trial the defendant excepts.

Cook & Palmour, Bobby Lee Cook, Summerville, Lindsay H. Bennett, Jr., Ressville, for plaintiff in error.

Earl B. Self, Sol. Gen., Summerville, for defendant in error.


1. The first special ground of the amended motion assigns error upon the denial of the request to charge on the matter of emergency. Since there is no assignment of error complaining that the charge was not given in the exact language of the written request, this court will only consider whether the request was correct, apt, precisely adjusted to some principle...

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2 cases
  • Bailey v. Perrin, 47685
    • United States
    • Georgia Court of Appeals
    • February 22, 1973
    ...830; Vun Cannon v. State, 208 Ga. 608, 611(2), 68 S.E.2d 586; Smith v. State, 108 Ga.App. 275, 276, 132 S.E.2d 821; Cupp v. State, 111 Ga.App. 722(2a), 143 S.E.2d 197. Upon application of the above ruling to the facts of this case, no error appears in the admission of the 2. Plaintiff-appel......
  • Atlantic Coast Line R. Co. v. Blount, 42727
    • United States
    • Georgia Court of Appeals
    • June 7, 1967
    ...Company v. Smith, 107 Ga.App. 384(5), 130 S.E.2d 355. In addition to the authority therein cited, see Code § 38-1708, Cupp v. State, 111 Ga.App. 722(2b), 143 S.E.2d 197; Ellerbee v. Atlantic Coast Line Railroad Company, 258 Ala. 76, 61 So.2d 89; 20 Am.Jur. 690, Evidence, § Even though the o......

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