Howard v. State

• Decision Date: 24 September 1921
• Docket Number: 2145.
• Citation: 108 S.E. 513,151 Ga. 845
• Parties: HOWARD v. STATE.
• Court: Georgia Supreme Court

108 S.E. 513

151 Ga. 845

HOWARD v. STATE.

No. 2145.

Supreme Court of Georgia

September 24, 1921

Syllabus by the Court.

The language employed in section 10 of the act of Nov. 30, 1915 (Acts Ex. Sess. 1915, p. 107), relating to the regulation of motor vehicles and motorcycles and their rate of speed upon the highways of this state, and providing that a motor vehicle shall not be operated upon any public street or highway "at a speed great, er than is reasonable and safe," is so indefinite as to render that part of the statute void. Moreover, since the decision of this case by the Court of Appeals, the portion of the statute above referred to has by this court been held to be unconstitutional and void.

Inasmuch as this court has held the third paragraph of section 10 of the act of 1915 (Acts Ex. Sess. 1915, p. 112) above referred to, unconstitutional, upon the ground that legislation upon this subject was not included in the Governor's call for the special session, it is unnecessary to decide whether it is also void upon the ground of indefiniteness and vagueness.

Additional Syllabus by Editorial Staff.

In a prosecution for manslaughter, an instruction of the court embodying parts of Acts Nov. 30, 1915 (Acts Ex. Sess. 1915 p. 112), § 10, relating to regulation of motor vehicles and their rate of speed, which had been held to be invalid, was prejudicially erroneous as tending to confuse the jury.

Certiorari from Court of Appeals.

David Howard was convicted of involuntary manslaughter, and the judgment was affirmed in the Court of Appeals (103 S.E. 683) and he brings certiorari. Reversed.

Branch & Howard, of Atlanta, for plaintiff in error.

Geo. M Napier, Sol. Gen., and Alonzo Field, both of Atlanta, for the State.

BECK P.J.

David Howard was indicted for the offense of murder, it being alleged in the indictment that he did, on the 20th day of May, 1919, unlawfully, and with malice aforethought, kill one Hubert Cochran, by driving an automobile against and over the said Cochran. He was tried under this indictment, and convicted of the offense of involuntary manslaughter in the commission of an unlawful act; and thereupon he made a motion for a new trial, which was overruled, and the case was carried by writ of error to the Court of Appeals. That court affirmed the judgment of the trial court, and a writ of certiorari to that judgment was sued out, bringing the case here for review.

1. One of the grounds of the motion for a new trial in this case assigns error upon the following part of the court's charge:

"The law provides that no person shall operate a motor vehicle or motorcycle upon any public street or highway at a speed greater than is reasonable and safe, not to exceed a speed of 30 miles per hour, having due regard for the width, grade, character, and common use of such street or highway, or so as to endanger life, limb, or property in any respect."

In the case of Empire Life Ins. Co. v. Allen, 141 Ga. 413, 81 S.E. 120, this court had before it for consideration and determination the validity of section 5 of the act of 1910 (Acts 1910, p. 90), which contains certain provisions regarding the operation of automobiles, making it unlawful for any person to "operate a machine on any of the highways of this state * * * at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of such highway, or so as to endanger the life or limb of any person or the safety of any property," and the violation of this provision was made punishable as a misdemeanor. The court there held that the part of section 5 of the act of 1910 quoted above was too indefinite to form the basis of a criminal action, whether it might stand as a rule of civil conduct or not. That ruling is applicable to the charge under consideration here; for the provision in the statute enacted at the extraordinary session of the Legislature on November 30, 1915, upon the subject of the speed limit and control on the highways, is as follows:

"No person shall operate a motor vehicle or motorcycle upon any public street or highway at a speed greater than is reasonable and safe, not to exceed a speed of 30 miles per hour, having due regard for the width, grade, character, traffic, and common use of such street or highway; or so as to endanger life, limb, or property in any respect whatever."

Instead of employing the expression, "at a rate of speed greater than is reasonable and proper," used in the act of 1910 the Legislature, at the extraordinary session of 1915, used the language, "at a speed greater than is reasonable and safe," substituting the word "safe" for the word "proper." See Acts Ex. Sess. 1915, p. 107, § 10. The language of the two acts is substantially the same; and under the ruling construing section 5 of the act of 1910,...