Foy v. State, (No. 20053.)

• Decision Date: 10 December 1929
• Docket Number: (No. 20053.)
• Parties: FOY . v. STATE.
• Court: Georgia Court of Appeals

40 Ga.App. 617

150 S.E. 917

FOY .

v.STATE.

(No. 20053.)

Court of Appeals of Georgia, Division No. 1.

Dec. 10, 1929.

(Syllabus by the Court.)

Error from City Court of Savannah; John Rourke, Jr., Judge.

Anderson Foy was convicted of involuntary manslaughter, and he brings error. Reversed.

John W. Bennett, of Waycross, and Bouhan & Atkinson, John J. Bouhan, and David S. Atkinson, all of Savannah, for plaintiff in error.

Walter C. Hartridge, Sol. Gen., and Julian Hartridge, Sol. Gen. pro tern., both of Savannah, for the State.

LUKE, J. The defendant was convicted of involuntary manslaughter in the commission of a lawful act in an unlawful manner, and in his bill of exceptions assigns error on the judgment overruling and denying a motion in arrest of judgment, and on the judgment overruling his motion for a new trial.

The accusation "charges and accuses Anderson Foy * * * with the offense of a misdemeanor, for that the said Anderson Foy, in the county of Chatham and State of Georgia aforesaid, on the 3d day of August, in the year of our Lord one thousand nine hundred and twenty-nine, did unlawfully kill one Cumpsie Hamilton, a human being, without any intention to do so, but in the commission of a lawful act, which probably might produce such a consequence, in an unlawful manner, that is to say, in the commission of a lawful act, where there was not observed necessary discretion and caution, in that the said defendant did operate a certain motor vehicle, to wit, an automobile, upon a certain public highway of this state, to wit, one Louisville road, in a lawful manner, but not observing the necessary discretion and caution, and did then and there run and drive said automobile into a wagon which was then and there being driven on said road by one Paul King, and did then and there, as a result thereof, cause the said Cumpsie Hamilton to be thrown and be knocked out of said wagon onto the Louisville road, thereby inflicting upon the said Cumpsie Hamilton certain mortal wounds, blows, and bruises, of which said mortal wounds, blows, and bruises the said Cumpsie Hamilton did then and there die, contrary to the laws of said state, " etc.

Section 67 of the Penal Code of 1910 provides that "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 lawful act, which probably might produce such a consequence, in an unlawful manner." Section 69 of the Penal Code of 1910 provides that "involuntary manslaughter, in the commission or performance of a lawful act, where there has not been observed necessary discretion and caution, shall be punished as for a misdemeanor." After charging the doing of the lawful act, which probably might produce such a consequence, in an unlawful manner, as set out in section 67, the pleader went further and set out that the unlawful manner consisted in failing to observe "necessary discretion and caution, " as provided in section 69. While failure to observe necessary discretion and caution is not, within itself and taken alone, a crime, the statute specifically and distinctly provides that failure to observe necessary discretion and caution in the performance of a lawful act which results in a homicide is punishable, and, if punishable, it must necessarily be a violation of the law. See Aaron v. State, 31 Ga. 1S5 (bottom of page). Furthermore, if the act be lawful, the gravamen of the offense defined in section 69 must be the failure to observe necessary discretion and caution.

By a comparison of the accusation with the foregoing Code sections, it will be noted that the pleader has alleged the offense strictly in the language of the statute; and it is not void. A timely demurrer to the accusation would have made it necessary for the state to allege further details, but (except in cases where the accusation or indictment is absolutely void) the defendant cannot waive his right of demurrer, put the state to the expense of a trial, procure a chance of acquittal, and then, on conviction, insist upon a point that could have been raised before the trial. In Gravitt v. State, 36 Ga. App....