Ivey v. State

• Decision Date: 14 January 1941
• Docket Number: 13452.
• Parties: IVEY v. STATE.
• Court: Georgia Supreme Court

12 S.E.2d 879

191 Ga. 461

IVEY v. STATE.

No. 13452.

Supreme Court of Georgia

January 14, 1941

Syllabus by the Court.

The evidence was not sufficient to support the verdict of murder. The judge erred in refusing to grant a new trial.

James R. Davis and James R. Davis, Jr., both of Thomaston, for plaintiff in error.

W H. Connor, Sol. Gen., of Griffin, Ellis G. Arnall, Atty Gen., Duke Davis, Asst. Atty. Gen., and C. E. Gregory, Jr. of Decatur, for defendant in error.

REID Chief Justice.

The accused was convicted of the murder of Miller Jones, under an indictment which charged that the new defendant 'with malice aforethought and with an automobile, same being an instrument and instrumentality likely to produce death, did drive an automobile upon, over, and against Miller Jones unlawfully, feloniously, wilfully, and of his malice aforethought,' which act it was alleged caused the death of Jones. He was sentenced to life imprisonment, on recommendation of mercy. His motion for new trial upon the general grounds, and a ground setting up newly discovered evidence, was overruled.

The evidence discloses that the accused, while driving an automobile on the public highway 'at a fast rate of speed,' collided near the brow of a hill with another automobile driven by the person who was killed in the collision. The accused in his statement to the jury contended that he met the Jones car as he rounded the curve 'on my side of the road.' The charge of the court is not brought up in the record, and therefore we do not know upon what issues the case was submitted to the jury. We assume it was upon the suggestion that in the commission of the act the accused was at the time violating some provision of the law in reference to the operation of motor vehicles because there is no proof of any malice or intention to kill. But when the evidence is examined we do not find anything that would authorize the inference that the killing happened in the commission by the accused of any unlawful act naturally tending to destroy the life of a human being. In the view we take of the evidence it is totally wanting in anything that would show such want on disregard of human life as would authorize the jury to imply malice or an actual intention to kill. This court, in Butler v. State, 178 Ga. 700, 173 S.E. 856; Jones v. State, 185 Ga. 68, 194 S.E. 216; and Meadows v. State, 186 Ga. 592 199 S.E. 133, held that the evidence was...