Kelly v. State, 28203.

• Decision Date: 16 July 1940
• Docket Number: No. 28203.,28203.
• Parties: KELLY. v. STATE.
• Court: Georgia Court of Appeals

10 S.E.2d. 417

KELLY.

v.STATE.

No. 28203.

Court of Appeals of Georgia, Division No. 1.

July 16, 1940.

Rehearing Denied July 31, 1940.

Syllabus by the Court.

1. An indictment, after charging the defendant with unlawfully killing a named person in the commission of certain unlawful acts, charged that the defendant did drive the automobile "at a greater rate of speed than fifty-five miles per hour, * * * 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 Kreitman was then and there an occupant, said automobile in which said Sam Kreitman was then and there an occupant having been brought to a complete standstill on its own right-hand side of the LaFayette-Chatta-nooga Highway, * * * thereby inflicting upon him, the said Sam Kreitman, certain mortal wound and wounds upon his head, body and members thereof, from which he, the said Kreitman, died, and the acts * * * were and are contrary to the laws of said State, " sufficiently charged the defendant with the offense of involuntary manslaughter, and was not subject to the objections that it was vague and indefinite and that the acts set forth therein were not so plainly set forth that the nature of the offense may be easily understood.

2. Under the indictment in the foregoing headnote, the judge did not err in recharging the jury as follows, after they returned a verdict, "We the jury find the defendant guilty of a misdemeanor": "Gentlemen of the jury, if you meant by your finding to find the defendant guilty of involuntary manslaughter in the commission of a lawful act without due care and caution, I charge you that if you so find, he would be guilty of a misdemeanor. If you so meant, I will ask you to so state by your verdict. The only charge the court gave you as to that, if you find the defendant guilty of involuntary manslaughter in the commission of a lawful act, that would be a misdemeanor. Is that what you intended to do, Gentlemen?" Whereupon, the foreman of the jury answered: "Yes, Sir, " and the court further instructed the jury: "Give the jury the indictment, return to your jury room, gentlemen, and if the jury agree that was the purpose of your finding then the form of your verdict would be, 'We, the jury, find the defendant guilty of involuntary manslaughter in the commission of a lawful act without due care and caution.' That would be a misdemeanor." Nor did the judge commit reversible error in subsequently receiving a verdict finding the defendant "guilty of involuntary manslaughter in the commission of a lawful act in a careless way."

3. The judge charged the jury in part: "I charge you further, gentlemen, that the operator of a motor vehicle, meeting another vehicle coming from the opposite direction on the same highway, shall turn to the right of the center of the highway, so as to pass without interference." This portion of the charge was not erroneous for the reasons that there is no law in this State which authorized or supported this charge, that it is too uncertain and indefinite in its terms to be capable of enforcement, introduced into the case elements not alleged in the indictment, and was harmful and prejudicial to the defendant.

4, 5. Special grounds 2 and 3 are not meritorious.

6. The charge as a whole covered plainly and in substance the principles of law stated in the request to charge. The language in the defendant's request to charge, framed in argumentative form and emphasizing selected facts in his interest, was not entitled to be adopted by the court, and the failure of the court to give the charge in the language requested was not reversible error.

7. The word "accident" is not a word which is probably not understood by a person unlearned in the law, but is a word of ordinary understanding and self-explanatory, and it is unnecessary, even upon request, to define or explain such a word to the jury. • 8. It is reversible error, where the evidence is conflicting, to refuse to allow a State's witness on cross-examination to testify that he has pending a damage suit based upon the same state of facts involved in such criminal case. However, after allowing the witness to testify that he had a civil suit pending based upon the same state of facts, the court did not err in controlling the cross-examination of State's witnesses.

9. It is the view of the majority of the court that the evidence taken as a whole was sufficient to authorize the verdict finding the defendant guilty of involuntary manslaughter in the commission of a lawful act in an unlawful manner. MacINTYRE, J., dissents from the ruling in this headnote only.

MacINTYRE, J., dissenting in part

Error from Superior Court, Walker County; C. H. Porter, Judge.

Gerald Kelly was convicted of involuntary manslaughter in the commission of a lawful act of driving an automobile in an unlawful manner, and he brings error.

Judgment affirmed.

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.

MacINTYRE, Judge.

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 br 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 bythe 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...