Edmonds v. State, 37512

• Decision Date: 15 January 1959
• Docket Number: No. 2,No. 37512,37512,2
• Citation: 98 Ga.App. 827,107 S.E.2d 286
• Parties: W. C. EDMONDS v. STATE
• Court: Georgia Court of Appeals

Page 286

107 S.E.2d 286

98 Ga.App. 827

W. C. EDMONDS v. STATE.

No. 37512.

Court of Appeals of Georgia, Division No. 2.

Jan. 15, 1959.

Wm. E. Smith, R. L. LeSueur, R. L. LeSueur, Jr., Americus, for plaintiff in error.

Charles Burgamy, Sol. Gen., Americus, for defendant in error.

Syllabus Opinion by the Court

CARLISLE, Judge.

1. The third special ground of the motion for new trial complains of the following portion of the charge: 'Now in connection with the contention of the State that the speed, the alleged speed that the defendant was operating under was the proximate cause of the death in that, as they contend, that the defendant lost control of his truck because of that speed and, in connection with the defendant's contention, if the defendant lost control of his truck which there seems to be no serious issue on that question, if the defendant lost control of his truck it was due to a rough place in the road and not the speed at which he was operating, I charge you that if you should determine beyond a reasonable doubt that the truck was being operated at a speed in excess of that provided by law under the circumstances and, if that operation was a contributing proximate cause to the loss of control and that the loss of control produced the death of the deceased, then it would be your right and duty to convict the defendant, even though you might also find that the roughness as contended by the defendant, that the rough place was also a contributing proximate cause. In other words, if both the speed and the roughness in the road were proximate causes of the loss of control, which loss of control produced the death of the deceased, then you would be authorized to convict the defendant of the felony charge of involuntary manslaughter in the commission of an unlawful act.' Error is assigned on this charge because it is contended that it injected the law of contributing proximate cause into the case which is a doctrine applicable to civil cases but which has no place in a criminal case, that this charge tended to minimize the accused's defense that the accident or death resulted from the roughness in the pavement alone which caused him to lose control of the truck and tended to confuse the law of proximate cause as related to the law of involuntary manslaughter. We think this ground of the motion was meritorious and that the trial court erred in not sustaining the motion for a new trial on this ground. Cain v. State, 55 Ga.App. 376, 380(2), 190 S.E. 371. Nowhere in the charge did the court instruct the jury as to the meaning of the term 'criminal negligence', nor was the jury told that criminal negligence, to be the basis for the conviction of 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 of the charge complained of in this ground of the motion were subject to the criticism...