Maxwell v. State
| Decision Date | 14 March 1958 |
| Docket Number | No. 2,No. 37081,37081,2 |
| Citation | 103 S.E.2d 162,97 Ga.App. 334 |
| Parties | Raiph MAXWELL v. The STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. Since the first special ground of the amended motion for new trial fails to set out therein any of the evidence, and fails to point out such parts thereof by reference to the page number of the brief of the evidence, one or the other of which is necessary to an understanding of the error in accordance with the amendment to Code, § 6-901 (Ga.L.1957, pp. 224, 232), this ground presents no question for consideration by this court.
2. Where there is a conflict between what is alleged to have been charged by the court in an approved ground of an amended motion for new trial, and the approved charge itself, this court will be governed by the approved charge.
3. In contemplation of law an operator of a motor vehicle on the public highway is under the influence of intoxicating liquor when he is so affected by it as to make it less safe for him to operate a motor vehicle than it would be if he were not affected by such intoxicating liquor, and it is not error for the trial court to so charge the jury in any case wherein this rule is applicable.
4. A crime in this State constitutes the violation of a public law. In the Uniform Traffic Control Act the General Assembly has delegated to the State Highway Board the authority to adopt a manual (Code Supp. § 68-1609) and to place on the highway traffic control devices conforming thereto (Code Supp. § 68-1610) the violation of which is penal (Dode Supp. § 68-9926). Specific suthority is given the Highway Board to erect certain types of signs the meaning and interpretation of which are fixed by law (Code Supp. § 68-1613) and the violation of which is criminal. Authority is given for the Highway Board to mark no-passing zones. (Code Supp. § 68-1638). Pursuant to the authority delegated to the State Highway Board by the General Assembly any traffic device properly adopted in the manual and placed on the highway which is self-explanatory so that a motorist can readily tell when he is abiding by or violating such device is sufficient to form the basis for penal action in case of its violation. However, the violation of a device explained only in the manual the meaning of which is not apparent from the device itself, and which meaning has not been defined by law, cannot form a basis for criminal prosecution. A yellow line painted on the surface of a two-lane highway to the right of the center line thereof to a motorist traveling in his right-hand lane on such highway is such a device. Accordingly, the trial court erred in charging the provisions of Code Supp. § 68-1638 providing for the authority of the Highway Board to make nopassing zones, the only evidence thereof being the yellow line in question.
5. The trial court also erred in charging that the minimum sentence to be inflicted in case of conviction of involuntary manslaughter in the commission of an unlawful act would be two years instead of one year as provided by law.
6. The remaining special assignments of error contained in the amended motion for new trial are without merit.
The defendant Ralph Maxwell was jointly indicted with three others for murder, and was tried and convicted in the Superior Court of Floyd County of involuntary manslaughter. He filed a motion for a new trial on the general grounds which was subsequently amended by the addition of 10 special grounds, and the denial of this motion is assigned as error.
Harl C. Duffey, Jr., Fullbright & Duffey, Rome, for plaintiff in error.
Chastine Parker, Sol. Gen., Horace T. Clary, Asst. Sol. Gen., Rome, for defendant in error.
1. Special ground 1 reads as follows: The rule that special grounds of a motion for a new trial must be complete within themselves is modified only to the extent of the amendment to Code (Ann.) § 6-901 (Ga.L.1957, pp. 224, 232) as follows: 'Motions for new trial * * * need not set out therein portions of record or transcript of evidence, nor shall it be necessary that the grounds thereof be complete in themselves, but shall point out such parts of the record or brief of the evidence by page number as are necessary to an understanding of the error complained of.' The meaning of this is not that special grounds need no longer either contain or refer to pertinent portions of the record, but that such parts of the record or brief of evidence as are designated by page number in the assignment of error shall be considered as incorporated therein. Brewer v. Henson, 96 Ga.App. 501(4), 100 S.E.2d 661; Harris v. State, 96 Ga.App. 395(2), 100 S.E.2d 120. Since this special grounds neither designated any evidence nor mentions that evidence was heard regarding this motion, the ground is not considered as referring to evidence. The motion, which was verified but apparently not introduced in evidence, is general in nature and alleges nothing which would necessarily be prejudicial to the rights of the defendant, and the record shows that the court had already granted one continuance for a two-week period. This ground presents no question for consideration by this court.
2. Special grounds 5 and 6 refer to excerpts from the charge relating to the test for determining the amount of alcohol in a person's blood stream which is authorized in Code, § 68-1625. The charge as quoted in special ground 6, and approved by the trial court, is obviously error. However, the record contains the entire charge, also approved by the trial court, which accurately sets out the law relating to this subject. There is accordingly a conflict between the record and the motion for new trial to this extent. In Alston v. Grantham, 26 Ga. 374(1) it was held: 'In a motion for a new trial, if the rule nisi states the charge differently from the charge itself, as written out by the judge and sent up with the record, this court will be governed by the charge as written.' We accordingly presume that the correct charge, as shown by the record, was given, rather than the incorrect charge as shown by the special ground of the amended motion for new trial.
3. Complaint is made in special ground 7 that the court charged: 'If you find * * * that the defendant was * * * at the time of the operation of such automobile, under the influence of intoxicating liquors to the extent that it rendered his operation of such automobile less safe, then he would be deemed to be under the influence of intoxicating liquors.' That this is a correct statement of the law see Bishop v. State, 92 Ga.App. 494(2), 88 S.E.2d 746 and citations. This ground is without merit.
4. The evidence shows that the defendant Maxwell and others, including the codefendant Suttles who was tried jointly with him, were engaged in 'drag-racing' automobiles on a public highway north of Rome, Georgia; that Maxwell passed another car not engaged in the rece and while doing so struck and killed a motorcyclist who was traveling at a reasonable rate of speed on his own right-hand side of the highway. From the diagrams and testimony of witnesses it appears that the highway was 22 feet wide; that it had a broken center line painted thereon; that at the place where the collision occurred there was a shallow curve and a slight hill; that to the right of the center line in the direction the defendant was traveling was also painted a yellow line over 450 feet long and that the point of impact occurred about 135 feet beyond the commencement of this yellow line.
Error is assigned in special ground 8 on the following excerpt from the charge: 'I further charge you...
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