Kelly v. State
| Decision Date | 16 July 1940 |
| Docket Number | 28203. |
| Parties | KELLY v. STATE. |
| Court | Georgia Court of Appeals |
Rehearing Denied July 31, 1940.
Syllabus by the Court.
S W. Fariss, of La Fayette, for plaintiff in error.
J Sante Crawford, of Rome, and J. Ralph Rosser, Sol. Gen., of La Fayette, for defendant in error.
1. The indictment in question in part charges the defendant, Gerald Kelly, with killing one Sam Krietman "without any intention to do so, *** by driving and operating a certain automobile * * against and into and upon a certain automobile in which the said Sam Krietman was then and there an occupant, the said accused driving and operating the aforesaid automobile *** at a greater rate of speed than fifty five miles per hour, and while accused thus operating the aforesaid automobile in said unlawful manner, and at a high and reckless and dangerous rate of speed, and in total disregard of all other persons then and there upon the highway, did drive said automobile, *** leaving his, the accused's right hand side of said highway, *** upon and against the automobile in which the said Sam Krietman was then and there an occupant, said automobile in which said Sam Krietman was then and there an occupant having been brought to a complete standstill on its own right hand side of the LaFayette-Chattanooga Highway, *** and being at a complete standstill at the time the accused did drive and operate his said automobile over, against and into the automobile in which the said Sam Krietman was then and there an occupant thereby inflicting upon him, the said Sam Krietman, certain mortal wound and wounds upon his head, body, and members thereof, from which he, the said Krietman, died, and the acts of the accused here complained of constituted the offense of involuntary manslaughter, and were and are contrary to the laws of said State."
The first ground of demurrer complains that the indictment is based on Code, § 68-305, and that so much thereof as undertakes to make penal certain acts is vague and indefinite and is incapable of enforcement and cites Hale v. State, 21 Ga.App. 658, 94 S.E. 823 and Heath v. State, 36 Ga.App. 206, 136 S.E. 284 in support of this contention. The second ground of demurrer complains that it is not alleged that the acts set forth therein (the way, manner, and fashion in which the defendant operated the car) were unlawful acts or were lawful acts in an unlawful manner which probably might produce the death
of Sam Krietman. The defendant contends that the indictment must state the offense in the terms and language of the Code, or so plainly that the nature of the offense may be easily understood, citing Moore v. State, 54 Ga.App. 218, 219, 187 S.E. 595 and other similar cases.
The present indictment charges involuntary manslaughter and is drawn under Code, § 26-1009, which defines the crime of involuntary manslaughter. The indictment charges the commission of two separate acts contrary to the laws of this State. The laws of the road alleged to have been violated are stated in Code, § 68-301, which sets the maximum speed limit for the type vehicle the defendant was driving at 55 miles per hour, and Code, § 68-303(c), which supersedes the provisions of Code, § 68-305, and governs the operation of automobiles on public highways (Seaboard Air-Line Railway Co. v. Benton, 43 Ga.App. 495, 502(12), 159 S.E. 717; Brinkman v. Atlantic Coast Line R. Co., 48 Ga.App. 121, 122, 172 S.E. 113), and the decisions relied on by the defendant are therefore not applicable. Code, § 68-303(c), declares that "An operator meeting another vehicle coming from the opposite direction on the same highway shall turn to the right of the center on the highway, so as to pass without interference." This court has held in Lester v. State, 51 Ga.App. 146, 179 S.E. 869 and Ray v. State, 47 Ga.App. 22, 169 S.E. 538, that that part of Code, § 68-303, (d), which provides that the way ahead is "clear of approaching traffic" is not so vague and indefinite as to invalidate the statute. The Act of 1927 (Code, § 68-303, c), does not contain the statements "if practicable" and "a 'fair opportunity' to pass," which might call for conclusions and be the subject of "idiosyncrasies of a jury." Ray v. State, supra, 47 Ga.App. at page 24, 169 S.E. at page 539. Therefore, we think that the statute in question requiring one meeting another coming in the opposite direction to keep to the right of the center on the highway "so as to pass without interference" is sufficiently definite.
Nor is the indictment subject to the second ground of the demurrer. The part of the indictment complained of in that ground is in effect in the language of the indictment approved of by this court in Hawkins v. State, 58 Ga.App. 386, 198 S.E. 551 Although one automobile is stopped, yet they are meeting each other in the sense of Code, § 68-303 (c). See Roberts v. Phillips, 35 Ga.App. 743 (11), 134 S.E. 837. The indictment charged the unintentional killing of a human being in the commission of certain unlawful acts, to-wit: exceeding the speed limit of 55 miles per hour and driving on the wrong side of the road. This was sufficient. Passley v. State, Ga.App., 8 S.E.2d 131, decided March 13, 1940.
2. The jury, after having retired to consider the case, returned the following verdict: "We the jury find the defendant guilty of misdemeanor." The court then asked counsel for the defendant if he was satisfied with the verdict and counsel replied: "I don't know that I understand." Thereupon the court recharged the jury as follows: The foreman of the jury replied thereto: "Yes Sir." Whereupon the court further instructed the jury as follows, to wit: The jury thereupon returned to the jury room and returned this verdict: "We the jury find the defendant guilty of involuntary manslaughter in the commission of a lawful act in a careless way." Counsel for the defendant then objected to the verdict being returned in that form on the ground that it was unsupported by the indictment or any law, and was not understandable. The court overruled the objection and the defendant excepted.
The defendant contends that to recharge as the court did was an expression of an opinion that the defendant was guilty of involuntary manslaughter in the commission of a lawful act without due care and caution; that it authorized a conviction of an offense not charged in the indictment; injected into the case elements not charged in the indictment, and of which the defendant had had no previous notice and no opportunity to prepare any defense to such charge, and that the verdict is "meaningless, contradictory, and inconsistent."
It has been held that where one is charged solely with the offense of involuntary manslaughter in the commission of certain specified unlawful acts, a conviction of involuntary manslaughter in the commission of a lawful act is entirely without authority of law. Hampton v. State, 92 Tex.Cr.R. 441, 244 S.W. 525, 526. In that case it was said that neither of the offenses seem to include the other, that the distinction between them is fundamentally different, and there being no pleading to justify the submission of involuntary manslaughter in the commission of a lawful act the trial court committed reversible error in submitting such offense to the jury. See Jones v. State, 147 Ga. 356 (1), 94 S.E. 248. However, in Georgia, where the indictment charges an offense (involuntary manslaughter in the commission of an unlawful act), in order to convict of a lesser offense (involuntary manslaughter in the commission of a lawful act which might produce such a consequence, in an unlawful manner) "the lesser offense must either necessarily be included in a general charge of the greater, or, if it may or may not be, then the averments of the indictment describing the manner in which the greater offense was committed must contain allegations essential to constitute a charge of the lesser." Watson v. State, 116 Ga. 607 (3), 43 S.E. 32, 21 L.R.A.,N.S., 1; Reams v. State, 24 Ga.App. 135, 100 S.E. 230; Cambron v. State, 36 Ga.App. 784, 138 S.E. 280. The offense of involuntary manslaughter in the commission of a lawful act which might produce such a consequence, in an unlawful manner, though not included in the general charge of involuntary manslaughter in the commission of an unlawful act, was, we think, in the present indictment, sufficiently charged in the allegations of the indictment describing the manner in which the greater offense (involuntary manslaughter in the commisson of an unlawful act) was committed. The present indictment, after charging the defendant with killing a named person, without any intention, by driving and operating a certain automobile over such named person at a greater rate of speed than 55 miles per hour, further charged him with operating the automobile "in said unlawful manner, and at a high and reckless...
To continue reading
Request your trial
-
Ebenezer v. State
......417(3)(a) (25 SE2d 823) (1943)." Gaddis v. State, 176 Ga.App. 526, 336 . Page 376. S.E.2d 587. In the case sub judice, we find the word "defraud," as used in the court's charge, is of such obvious significance and common understanding as to need no definition by the trial court. See Kelly v. State, 63 Ga.App. 231, 239(7), 10 S.E.2d 417. This enumeration is without merit. 8. In his final enumeration, defendant contends the trial court erred in failing to sustain his demurrer to the indictment, arguing that jurisdiction over the offense of counterfeiting is vested ......
-
Cupp v. State, 41218
...... A written request must itself be perfect, otherwise, the refusal to give it will not be cause for new trial. Smithwick v. State, 199 Ga. 292(7), 34 S.E.2d 28. . (c) Another reason that the denial of the request was not error appears from an examination of Kelly v. State, 63 Ga.App. 231, 239, 10 S.E.2d 417, 422, where the defendant was similarly convicted. The request for a charge on the law of emergency in that case was different from that here only in that it included some of the facts which the evidence had shown. (The evidence, of course, in the two ......
-
Thomas v. State, 36591
...... The plaintiff cites several cases in which it is held that words so simple as to be self-explanatory and generally understood by those unlearned in the law need not be defined by the judge in his charge to the jury (Kelly" v. State, 63 Ga.App. 231, 239, 10 S.E.2d 417; Floyd v. State, 58 Ga.App. 867, 200 S.E. 207), and that it is more productive of confusion than clarity to undertake to define plain words and phrases. The cases that we have referred to dealt with the refusal to define certain simple words. \xC2"......
-
Adams v. MARTA
......667, 672(6), 396 S.E.2d 557 (1990). 5. (Citations and punctuation omitted.) Id. 6. Floyd v. State, 58 Ga.App. 867, 871(1, 2), 200 S.E. 207 (1938). 7. Id. at (2), 200 S.E. 207. 8. McCallister v. Doe, 181 Ga.App. 2, 603-604(1), 353 S.E.2d 89 (1987). 9. Kelly v. State, 63 Ga.App. 231, 239(7), 10 S.E.2d 417 (1940). 10. Slater v. Dodd, 108 Ga.App. 879(2), 134 S.E.2d 848 (1964). ......