Huntsinger v. State

• Decision Date: 19 November 1945
• Docket Number: 15297.
• Citation: 36 S.E.2d 92,200 Ga. 127
• Parties: HUNTSINGER v. STATE.
• Court: Georgia Supreme Court

36 S.E.2d 92

200 Ga. 127

HUNTSINGER v. STATE.

No. 15297.

Supreme Court of Georgia

November 19, 1945

Syllabus by the Court.

1. Where death results to another from the operation of an automobile, and there was no intention to kill or to strike the deceased with such automobile, although it may have been driven at the time and place of the killing in a careless and negligent, even reckless manner, the driver of the car would be guilty of involuntary manslaughter only; except that where such involuntary killing shall happen in the commission of an unlawful act and all the circumstances of the killing show an abandoned and malignant heart, the driver would be guilty of murder. Austin v. State, 110 Ga. 748, 36 S.E. 52, 78 Am.St.Rep. 134; Pool v. State, 87 Ga 526, 13 S.E. 556; Burton v. State, 92 Ga. 449, 17 S.E. 99.

2. Grounds 4 and 5 of the amended motion for new trial complain of the admission, over objection, of evidence by the witnesses Tom H. Hunter and C. D. Duke as to the speed of the automobile operated by the defendant; the witness Hunter testifying that at his place, one half mile distant from the scene of the homicide, 'I thought he was driving at a pretty fast rate, enough to attract my attention;' and the witness Duke testifying that at his place, three-fourths of a mile from the scene of the homicide, 'I will say he was running between 70 and 80 miles per hour.' It was clearly not error to admit this evidence and allow the jury to pass upon circumstances affecting its competency in determining its credibility and weight. Mitchell v State, 71 Ga. 128. Ground 5 complains of the admission of other evidence, but it is not shown what this consisted of, nor does the ground show that the witness answered the question after an objection. When evidence alleged to be objectionable is not set forth in substance, the ground of the motion for new trial is incomplete and does not set forth any question for adjudication by the Supreme Court. Wheelwright v. Aiken, 92 Ga. 394, 17 S.E. 610; Davis v. Gaskins, 137 Ga. 450, 73 S.E. 579.

3. Ground 6 complains of the admission of the following evidence: 'I am Fred Vandiver, I live in Gainesville, am jailer and deputy sheriff of Hall County. I have seen Jack Waldrop. I could not tell you what date.' Question by Solicitor-General Stark: 'How long did Mr. Waldrop's car stay in Gainesville at the jail?' Over objection of defendant's counsel that the question was improper, as an effort to inject the character of Jack Waldrop into the case, and did not illustrate anything pertaining to the case on trial, the court permitted the witness to answer as follows: 'Mr. Gilbreath and Mr. Clark brought it there and it stayed there three days. Me and Harrison Vandiver's father are half brothers.' The brief of evidence does not show how the above testimony of Vandiver was even remotely related to the issue on the trial, and it should have been excluded.

4. Ground 7 attacks the qualification of a juror. Since this question will not likely arise on another trial, and the judgment refusing a new trial is reversed on the general grounds, no ruling will be made as to such qualification.

Summer Huntsinger was indicted by the grand jury of Jackson County, it being charged that he did unlawfully with force and arms feloniously and with malice aforethought, wantonly and with reckless disregard for human life, drive and operate an automobile on and over the public highway in Jackson County, known as Jefferson-Commerce Highway, running through the City of Jefferson, and also known as Sycamore Street in Jefferson, Georgia, near the service station of Clyde Doster, and then and there while driving and operating said automobile at a speed exceeding 55 miles per hour on a curve, did then and there drive and steer his automobile off of said highway and street into and upon one Harrison Vandiver, inflicting mortal wounds from which Harrison Vandiver then and there died. There was no reference in the indictment to a violation of any ordinance of the City of Jefferson regulating the speed of automobiles, and the evidence shows that the homicide occurred, not in the main business section of the City of Jefferson, but in the outskirts of the city.

The evidence for the State shows that the only eyewitness to the homicide was L. A. Langford, who testified in part as follows: 'I was there at Clyde Doster's filling-station in the City of Jefferson, Jackson County, Georgia. Mr. Vandiver was hit by the car of Mr. Huntsinger in Jefferson, Jackson County, Georgia. I was about two feet from Mr. Vandiver when Mr. Huntsinger's car ran into him. He was standing there talking to me. * * * I was standing sideways to him, until Mr. Vandiver said, 'Look there,' and those were the last words he said. The first time I saw Mr. Huntsinger's car, it was ten or fifteen steps from us. It is pretty hard to say what rate of speed he was going, 75 or 80 miles an hour, I guess. * * * I was facing sideways with the car coming on, and he was standing facing it, and he saw the car before I did, and he said, 'Look there,' and that's the last words he spoke. * * * The only distance that I saw the automobile was like from here to the jurors there in the back of the box. As to whether what I have sworn is my opinion and is not based on facts. Well, that's all we got, ain't it: * * * It seems that Huntsinger's car went into a skid just before the impact, it seems he was trying to get it back into the road. By pulling the car to the left with all the force you could would make the right-hand rear of the car go into a skid, and that is exactly what happened out there. I suppose that pavement out there is standard, though I do not know whether it is 16 or 18 feet though there is plenty of room for two cars and then they don't get to the pavement. At that point the road is on a curve. * * * When I observed Mr. Huntsinger, his car was in a skid and he was doing his best to pull it back. I don't know what happened to cause his car to be off the road. When Mr. Vandiver said, 'Look there,' Mr. Huntsinger's car was in a skid.'

There were other witnesses who testified that they saw the defendant at other times and other places on the date of the homicide, the evidence of such witnesses being that the defendant was driving fast, or carelessly, or that he was speeding, the rate of speed being fixed variously from 60 to 80 miles per hour. There was evidence by two members of the highway patrol to the effect that the driveway at the filling-station was 165 feet long; that the filling-station from the edge of the pavement is about 25 feet; that they found where the car had made a slip-slide mark, 'that is one wider than an ordinary tire print is, if it is being driven straight, which indicates it was in a skid for a distance of 165 feet and from the edge of the pavement it was 4 feet and 10 inches;' that the car Huntsinger was driving got off of the paving 43 feet before the collision, and that he was skidding sideways and went into a skid before the homicide. The two troopers who testified estimated that the speed of the automobile at the time of the homicide was from 50 to 80 miles an hour, based on evidence observed after the homicide.

The defendant's statement was in part as follows: 'I stopped down here at the bank a few minutes. I never got out of the car. I talked to R. C. Roberts, and then I left there and started on out the road, and just past the bridge down here I passed George Whitehead's taxi and I went on out there, and as I went into the point on this curve something happened to the car, and I don't know what it was, but it throwed me off the pavement, and I done all I could to get it back to the pavement and I wouldn't a done it for anything in the world. I was carried to the hospital myself and I was unconscious, and when I come to myself Mr. Vandiver was killed and I didn't know anything about it, and I was sorry of it, and I wouldn't done it for nothing in the world.'

Other evidence will be quoted in the opinion.

G. P. Martin and E. C. Stark, both of Commerce, for plaintiff in error.

Geo. W. Westmoreland, of Jefferson, Hope D. Stark, Sol. Gen., of Lawrenceville, and Eugene Cook, Atty. Gen., and Daniel Duke, Asst. Atty. Gen., for defendant in error.

HEAD, Justice (after stating the foregoing facts).

1. Sumner Huntsinger was convicted of murder under the proviso contained in the Code, § 26-1009, defining involuntary manslaughter: '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 a lawful act, which probably might produce such a consequence, in an unlawful manner: Provided, that where such involuntary killing shall happen in the commission of an unlawful act which, in its consequences, naturally tends to destroy the life of a human being, or is committed in the prosecution of a riotous intent, or of a crime punishable by death or confinement in the penitentiary, the offense shall be deemed and adjudged to be murder.' The above proviso was discussed by this court in Wright v. State, 166 Ga. 1, 141 S.E. 903. In the opinion it was held that the proviso of the section defining involuntary manslaughter must be considered in connection with section 26-1002, which defines murder; and it was stated that there can be no murder without malice, express or implied, and that, if the indictment does not allege malice in express terms, it must do so by the employment of equivalent words; citing Gates v. State, 95 Ga. 340, 22 S.E. 836.

The first principle announced in the Wright case, supra, that statutes relating to the same subject matter (in pari materia) should be considered and construed together, follows the rule which has been in effect in this...