Jones v. State

• Decision Date: 27 November 1937
• Docket Number: 11943.
• Citation: 194 S.E. 216,185 Ga. 68
• Parties: JONES v. STATE.
• Court: Georgia Supreme Court

194 S.E. 216

185 Ga. 68

JONES v. STATE.

No. 11943.

Supreme Court of Georgia

November 27, 1937

Error from Superior Court, Lawrens County; J. L. Kent, Judge.

Braxton (Prester) Jones was convicted of murder, and he brings error.

Affirmed.

Syllabus by the Court.

This being an indictment for murder, wherein it was charged that the accused, with malice aforethought, struck and killed the deceased with an automobile, and the evidence showing that the defendant was at the time engaged in the commission of an unlawful act, to wit, driving an automobile while under the influence of intoxicating liquor and at a speed in excess of 40 miles an hour on a public highway of this State, and there being evidence to authorize an inference that the killing happened in the commission of an unlawful act which, under the facts and circumstances, naturally tended to destroy the life of a human being, the jury were authorized to grade the offense as murder instead of involuntary manslaughter.

Braxton Jones was indicted for the murder of Claud Williams, the specific charge being that he 'did then and there unlawfully and with force and arms, feloniously, and with malice aforethought, with a certain automobile which he had and held, the same being a weapon likely to produce death make an assault upon Claud Williams hereinafter referred to as the deceased, and the said accused with said weapon did then and there unlawfully, feloniously, and with malice aforethought, strike, hit, and run against the said deceased thereby giving him a mortal wound, of which the deceased then and there died.' There was evidence to the effect that at the time the injuries were inflicted which resulted in death, the defendant was driving his automobile at a rate of speed in excess of 40 miles per hour, while under the influence of intoxicating liquor. The mother and wife and the deceased were in his car at the time. The motor had ceased to run, and the deceased pulled his car to the right side of the road, 'as near off the pavement as he could get off without turning over,' according to their testimony. The deceased got out of his car or truck and tried to crank it all the time keeping the lights of his truck burning; and, while he was standing by the side of his car, trying to find and correct the trouble, the defendant was seen coming in his car. The mother stated that 'it seemed to me like the car was coming sixty miles an hour.' It struck the deceased just as he was trying to climb into his own car. Those in the car driven by the defendant 'were hollering like drunken negroes.' The wife of the deceased testified: 'It would be hard to say which side of the street the car [of the accused] was on when I first saw it, because it was from one side to the other. It was traveling fast, but I could not say exactly how fast. I would guess it was coming about forty-five or fifty miles an hour.' Other witnesses testified that they saw the deceased's car standing; that he appeared to be trying to crank it and get it to start; that his car was parked as far as possible on the right-hand side of the road, about half off the pavement; and that he kept his lights burning. The deputy sheriff was called to investigate the killing. He arrested the accused about thirty minutes after the deceased was struck. The accused was lying very drunk in his automobile. There were empty whisky and wine bottles in his car, and his car had been injured, a running board knocked off. He first denied that he was in the wreck, but then admitted that he was the man in the wreck, and that he was driving at the time.

The accused put up no witnesses, but made a statement in which he denied that drinking had anything to do with the accident. He said he was blinded by headlights of other cars; that he had never before been arrested, 'and never been caught in the influence of liquor before.' In rebuttal the jailer where the accused was incarcerated testified that 'he said that he had a couple of drinks, one in Macon and one in Dublin, but that one of them was wine. He said he wasn't driving more than forty miles an hour; said he may have been zigzagging across the road, that he was talking to the women in the back seat.'

The jury returned a verdict of guilty, with a recommendation to mercy. The accused made a motion for new trial on the general grounds, which was overruled, and he excepted.

W. A. Dampier, of Dublin, for plaintiff in error.

J. Roy Rowland, Sol. Gen., of Wrightsville, Emory S. Baldwin, Jr., of Dublin, M. J. Yeomans, Atty. Gen., and Ellis G. Arnall, Asst. Atty. Gen., and E. J. Clower, of Atlanta, for the State.

GRICE Justice.

The injuries from which the deceased died were inflicted by the accused while he was committing two unlawful acts; for it is declared by the Code, § 68-307, that no person shall operate a motor vehicle upon any public street or highway while under the influence of intoxicating liquors; and by Section 68-301 no person is permitted to operate a motor vehicle on a public street or highway at a greater rate of speed than 40 miles an hour. A violation of either section is a misdemeanor. Section 68-9908. Ordinarily the killing of a human being without any intention to do so, but in the commission of an unlawful act is involuntary manslaughter (Code, § 26-1009); but that section contains a proviso in these words: '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...