Lancaster v. State, No. 33429

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtGARDNER; MacINTYRE, P. J., and TOWNSEND
Citation83 Ga.App. 746,64 S.E.2d 902
Decision Date19 April 1951
Docket NumberNo. 33429,No. 2
PartiesLANCASTER v. STATE

Page 902

64 S.E.2d 902
83 Ga.App. 746
LANCASTER

v.
STATE.
No. 33429.
Court of Appeals of Georgia, Division No. 2.
April 19, 1951.

Page 903

Syllabus by the Court

1. The use of the words 'willful or wanton' in a statute is not so vague and indefinite as to be incapable of enforcement and an accusation drawn thereunder is not demurrable for that reason.

2. 'A motion to set aside the judgment is not the appropriate remedy in a criminal case if the indictment is void. The judgment may be arrested upon motion made during the term at which the verdict is rendered, or the prisoner may be discharged upon a writ of habeas corpus at any time thereafter, if no question as to the validity of the indictment was adjudicated at the trial.'

3. (a) Under the provisions of the Act of 1939, p. 295, as to reckless driving, the trial court after a conviction, is unauthorized to require of the defendant, restitution in the nature of damages to the prosecutor.

(b) It is our practice in the reversal of a case, not to discuss the general grounds for the reason that we do not know what the evidence might be on another trial, but we might state here that unless the evidence is materially different on another trial, and more specific as to the offense of reckless driving under the provisions of the Act of 1939 now under consideration, it would not sustain a conviction.

4. (a) 'Willful or wanton' is the gist of the offense of reckless driving and it is the duty of the court to define the meaning of these words without a request to do so, and a failure to do so is reversible error.

(b) Special ground 2 is not argued.

(c) Where the court undertakes to charge the principles contained in a Code Section, he should charge all the principles involved in the Code Section, if the evidence warrants it.

(d) Special ground 4 is not argued.

5. Division 5 needs no further comment.

The defendant was accused and convicted in the City Court of Dublin for the offense of 'reckless driving.' The accusation while not verbally accurate under the provisions of the statute under which it was drawn, substantially alleges that the defendant did, within the period of the statute of limitations drive and operate an automobile willfully and wantonly upon Church Street in the City of Dublin, Georgia in disregard of the safety of persons and property and committed the offense of a misdemeanor,--reckless driving. The General Assembly made reckless driving an offense under the Acts of 1939, pp. 295, 296 and this provision of law will be found also in Publisher's Pocket Supp. to the Code of 1933, section 68-9919. Before pleading to the [83 Ga.App. 747] accusation, the defendant filed demurrers both general and special. The general and special demurrers are to the effect that the accusation charges no criminal offense for that the provisions of said Act of 1939 above referred to are so vague, uncertain and indefinite that they do not constitute a criminal statute and therefore the accusatidon drawn thereunder is void. The trial court overruled the demurrers. Exceptions pendente lite were filed thereto. The case proceeded to trial. A verdict of guilty was returned against the defendant. During the term of court in which the verdict of guilty was rendered, the defendant made a motion in arrest of the verdict, judgment and sentence of the court and for grounds said:

'1. That the accusation in said case is void for the reason that the statute and law on which same is drawn and based is [Publisher's Pocket Supp. to the Code of 1933,] section 68-9919, and reads as follows: 'Any person who drives any motor vehicles upon a street or highway * * * in such a manner as to be in willful or wanton disregard of the safety of persons or property is guilty of the criminal offense of reckless driving' same being Acts of the Legislature of Georgia, 1939, p. 296 sub-section (a) of section 1.

'That said statute, section of the Code, and Act of the Legislature is void for the reasons:

Page 904

'(1) That same is so general, vague, indefinite, and uncertain in its terms, that it was incapable of enforcement as a criminal statute.

'(2) Said statute names and provides no rule or criterion by which the defendant would know . . . when he was driving 'in such a manner as to be in willful or wanton disregard of the safety of persons or property'.

'(3) That said statute does not define 'willful or wanton,' does not define what would be 'willfull or wanton' driving, does not define what act or acts on the part of a driver would be 'willful or wanton', or 'willful or wanton' driving.

'(4) That said statute lays down no rule or criterion by which a court or jury can determine when a driver is driving or has driven his automobile 'in such a manner as to be in willful or wanton disregard of the safety of persons or property', or in such manner as to be in willful and wanton disregard of the safety of persons or property.

[83 Ga.App. 748] '(5) That said statute is so vague, general, uncertain, and indefinite that it constitutes no criminal offense and cannot be enforced as a criminal statute. * * *

'3. That because of the invalidity of said statute, the accusation, verdict of guilty and judgment and sentence is void, and defendant [is] not guilty of violating any valid statute.

'4. That the court's judgment and sentence in said case is as follows: 'Whereupon, it is ordered and adjudged by the court, that the said William Grady Lancaster do work in the public work camp of said county, or elsewhere as the proper authorities may direct, for the term of twelve months, to be computed from the date he is received by the Superintendent of Public Work Camp of Laurens County, Georgia, from which sentence may be relieved by paying into the court at any time a fine of $220.00, and all costs accruing hereafter; $167.50 of the fine to be paid to the prosecutor, 'which sentence is void for the following reasons:

'(1) That defendant was convicted of reckless driving under accusation drawn under Publisher's Pocket Addition to the Code of 1933, Section 68-9919, (Ga. Laws 1939, pp. 295, 296), which provides the punishment as follows: 'Upon first conviction, by imprisonment for not less than five days nor more than 60 days, or by a fine of not less than $25 nor more than $100, or by both such imprisonment and fine; and upon a second or subsequent conviction * * * not less than 10 days nor more than six months, or by a fine of not less than $50 nor more than $500, or by both such imprisonment and fine.'

'(2) That the court is without authority to sentence the defendant to twelve months on the chain gang, public works camp, or elsewhere as proper authorities may direct, or any portion of twelve months in the public work camp of said county or elsewhere as proper authorities may direct.

'(3) That under said statute providing the punishment for reckless driving no provision is made that a defendant should work on the chain gang or public works camp any period of time, and the court was without authority to impose the said sentence as above set out.

'(4) That the court has and had no authority to require restitution to prosecutor of the amount provided in said sentence or any portion thereof.

[83 Ga.App. 749] '5. Movant shows that by reason of all the foregoing facts, the accusation, said statute on which same is based is void, that the verdict, judgment and sentence of the court are likewise void, same should be arrested, vacated and set aside on all grounds herein set out, and that he should be discharged instanter.

'Wherefore, movant prays that all grounds of this, his motion in arrest, be sustained, and that he be forever discharged.'

The court overruled the motion in arrest of judgment but before doing so amended the sentence as follows: 'The sentence of the court in the above styled case and stated case is hereby amended at this, the September Quarterly Term, 1950, of the City Court of Dublin, by striking from the original sentence the following: 'that the said William Grady Lancaster do work in

Page 905

the public work camp of said county, or elsewhere as the proper authorities may direct for the term of twelve months, to be computed from the date he is received by the Superintendent of Public Work's Camp of said county, Georgia, from which sentence he may be relieved by paying into court at any time a fine of $220.00 and all costs accruing hereafter; $167.50 of the fine to be paid to the prosecutor.' And by adding to said original sentence in lieu of the above quoted conditions, the following: 'That the said William Grady Lancaster be confined in the common jail of said county for a period of sixty days, to be computed from the date he is received by the sheriff and jailer of Laurens County, and further ordered, that the said William Grady Lancaster may be relieved from serving said jail sentence by paying at any time, a fine of $100.00 to the proper authorities of said court. It is further ordered and hereby directed that the officers of said court pay to the prosecutor $75.00 restitution, and that $25.00 of said fine be retained by said officers and apply to the cost of the court in said case.' This, the 19th day of September, 1950.'

The defendant filed his motion for a new trial on the usual general grounds and thereafter amended his motion by filing four special grounds.

Special ground 1 in effect complains because the court charged the statute under which the defendant was accused, but did not define the words, 'willful or wanton' or 'willful and wanton', and the court should have charged without a request, that the [83 Ga.App. 750] jury before they could convict the defendant, the evidence must show an evil design, purpose, and evil intent to injure another person operating an automobile or to purposely injure a person or property, in order to determine the meaning of the words used in the statute 'willful or wanton'.

Special ground 2 assigns error in that the court erred...

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12 practice notes
  • State v. Ashton, No. 39045
    • United States
    • United States State Supreme Court of Kansas
    • October 10, 1953
    ...v. Harold, 74 Ariz. 210, 246 P.2d 178; People v. Garman, 411 Ill. 279, 103 N.E.2d 636; Lancaster v. State, 83 Ga.App. [175 Kan. 173] 746, 64 S.E.2d 902; United States v. Henderson, 73 App.D.C. 369, 121 F.2d 75; State v. Hamilton, 133 W. Va. 394, 56 S.E.2d 544, 12 A.L.R.2d 573, annotation Al......
  • Johnson v. Sunshine Min. Co., Inc., No. 14786
    • United States
    • United States State Supreme Court of Idaho
    • June 14, 1984
    ...79, 83, 4 Ill.App.2d 166 (1955). In the civil law the words "willful and wanton" mean more than ordinary negligence. Lancaster v. State, 64 S.E.2d 902, 911, 83 Ga.App. 746 (1951). "Wantonness" is the doing of some act or omission to do some act with reckless indifference to knowledge that s......
  • McKay v. State, No. A98A0902.
    • United States
    • United States Court of Appeals (Georgia)
    • September 29, 1998
    ...Ga.App. 350, 351, 291 S.E.2d 425 (1982). See also Echols v. State, 187 Ga.App. 870, 871-872, 371 S.E.2d 682 (1988); Lancaster v. State, 83 Ga.App. 746, 760(2), 64 S.E.2d 902 (1951). A motion for new trial is not the proper method to attack the sufficiency of an indictment and does not provi......
  • Walters v. State, No. 35215
    • United States
    • United States Court of Appeals (Georgia)
    • July 8, 1954
    ...limits. See Code, §§ 68-301, 68-303, and 68-312. The decisions of Gore v. State, 79 Ga.App. 696, 702, 54 S.E.2d 669; Lancaster v. State, 83 Ga.App. 746, 759, 64 S.E.2d 902, and Howard v. State, 151 Ga. 845, 108 S.E. 513 are not contrary to what we are here We have read this indictment caref......
  • Request a trial to view additional results
12 cases
  • State v. Ashton, No. 39045
    • United States
    • United States State Supreme Court of Kansas
    • October 10, 1953
    ...v. Harold, 74 Ariz. 210, 246 P.2d 178; People v. Garman, 411 Ill. 279, 103 N.E.2d 636; Lancaster v. State, 83 Ga.App. [175 Kan. 173] 746, 64 S.E.2d 902; United States v. Henderson, 73 App.D.C. 369, 121 F.2d 75; State v. Hamilton, 133 W. Va. 394, 56 S.E.2d 544, 12 A.L.R.2d 573, annotation Al......
  • Johnson v. Sunshine Min. Co., Inc., No. 14786
    • United States
    • United States State Supreme Court of Idaho
    • June 14, 1984
    ...79, 83, 4 Ill.App.2d 166 (1955). In the civil law the words "willful and wanton" mean more than ordinary negligence. Lancaster v. State, 64 S.E.2d 902, 911, 83 Ga.App. 746 (1951). "Wantonness" is the doing of some act or omission to do some act with reckless indifference to knowledge that s......
  • McKay v. State, No. A98A0902.
    • United States
    • United States Court of Appeals (Georgia)
    • September 29, 1998
    ...Ga.App. 350, 351, 291 S.E.2d 425 (1982). See also Echols v. State, 187 Ga.App. 870, 871-872, 371 S.E.2d 682 (1988); Lancaster v. State, 83 Ga.App. 746, 760(2), 64 S.E.2d 902 (1951). A motion for new trial is not the proper method to attack the sufficiency of an indictment and does not provi......
  • Walters v. State, No. 35215
    • United States
    • United States Court of Appeals (Georgia)
    • July 8, 1954
    ...limits. See Code, §§ 68-301, 68-303, and 68-312. The decisions of Gore v. State, 79 Ga.App. 696, 702, 54 S.E.2d 669; Lancaster v. State, 83 Ga.App. 746, 759, 64 S.E.2d 902, and Howard v. State, 151 Ga. 845, 108 S.E. 513 are not contrary to what we are here We have read this indictment caref......
  • Request a trial to view additional results

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