Passley v. State

• Decision Date: 13 March 1940
• Docket Number: No. 27928.,27928.
• Parties: PASSLEY . v. STATE.
• Court: Georgia Court of Appeals

8 S.E.2d 131

PASSLEY .

v.STATE.

No. 27928.

Court of Appeals of Georgia, Division No. 1.

March 13, 1940.

Syllabus by the Court.

The court did not err in overruling the demurrer to the indictment. The assignments of error are without merit. The evidence supports the verdict.

Error from Superior Court, Bartow County; John C. Mitchell, Judge.

Jesse Passley was convicted of involuntary manslaughter and he brings error. Affirmed.

Joe M. Lang, of Calhoun, for plaintiff in error.

J. H. Paschall, Sol. Gen., of Calhoun, for defendant in error.

MacINTYRE, Judge.

The defendant was convicted of involuntary manslaughter. He excepts to the overruling of his demurrer to the indictment and to the overruling of his motion for new trial as amended.

1. The indictment charged that the defendant "did unlawfully kill one Mrs. Maggie Towe, a human being, in the peace of God and said State then and there being, without any intention to do so, but in the commission of an unlawful act, to-wit; while he, the said Jesse Passley was driving and operating a certain 1929 model A Ford tudor sedan automobile in a Westerly direction along the Folsom and Adairs-ville public road about one half mile West of Folsom, Ga., and about 200 yards West of the residence of R. E. L. Bolding, on a sharp curve in said road and at the time driving at a speed of 30 miles per hour on said sharp curve and while passing a certain 1929 Model A Ford automobile being driven by Corris Adcock and while meeting a certain 1929 Model A Ford tudor sedan automobile being driven and operated by J. D. Towe in which said automobile so driven by said Towe the said Mrs. Maggie Towe was riding as a passenger, the said automobile so driven by said Towe in an easterly direction, while said Passley was driving in a westerly direction, and without giving the Towe car one half the travelled highway, and did drive and operate said automobile so driven by him, the said Jesse Passley over on the side of the road and highway on which said Towe was driving, and on Passley's left hand side of the road and did drive his said automobile onto and against the automobile being driven by said Towe at said speed of 35 miles per hour, causing a head-on collision between the automobile driven by said Towe and the car driven by said Passley, thereby inflicting on and upon the body and person of said Mrs. Maggie Towe certain mortal wounds from which she then and there died." He filed various grounds of demurrer, the sum and substance of which was that the indict-ment failed to charge the defendant with the violation of any law and "does not allege that he wantonly and wilfully or recklessly drove his car on the wrong side of the road" and that it is necessary to allege criminal or culpable negligence and that the indictment is too vague and indefinite to apprise the defendant of the charges against him so as to enable him to prepare his defense.

Code, § 26-1009, in part declares: "Involuntary manslaughter shall consist in the killing of a human being without any intention to do so, but in the commission of an unlawful act, or a lawful act, which probably might produce such a consequence, in an unlawful manner * * *." It is to be especially noted that this is an indictment for involuntary manslaughter in which there is no intention to kill. The essential elements of said crime of involuntary manslaughter in the commission of an unlawful act are, first, intent to commit the unlawful act, and secondly, the killing of a human being without having so intended, but as the proximate result of such intended unlawful act. Wells v. State, 44 Ga.App. 760(1), 162 S.E. 835. The law alleged to be violated, Code, § 68-303 (c, d, e), is in part as follows: "Every person operating a vehicle upon the highways shall observe the following traffic rules and regulations: * * * c. 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. d. An operator of a vehicle overtaking another vehicle going in the same direction, and desiring to pass the same, shall pass to the left of the vehicle overtaken: Provided, that the way ahead is clear of approaching traffic, but if the way is not clear he shall not pass unless the width of the roadway is sufficient to allow his vehicle to pass to the right of the center thereof in the direction in which his vehicle is moving: Provided further, that no operator shall pass a vehicle from the rear at the top of a hill or on a curve where the view ahead is any way obscured or while the vehicle is crossing an intersecting highway. * * * e. An operator in rounding curves shall reduce speed and shall keep his vehicle as far to the right on the highway as reasonably possible." A violation of these regulations is a misdemeanor. Code, § 68-9908. We do not think the indictment was defective because it failed to charge expressly that the de fendant "wantonly and wilfully or recklessly drove his car on the wrong side of the road." It did charge the defendant with the offense of involuntary manslaughter. This offense does not involve malice or wilfulness or wantonness and is expressly defined in Code, § 26-1009, supra, to be the killing of a human being without any intention so to do. The indictment here charged that the killing was unintentional, but was done in a certain described unlawful act, to-wit: violating traffic regulations. Code, § 68-303. This was sufficient. Hayes v. State, 11 Ga.App. 371(7), 380, 75 S.E. 523. The indictment in the instant case in effect charged every essential ingredient of the offense charged, and alleged in effect a violation of the Traffic Regulations Act (Code, § 68-303) "with sufficient clearness to enable the defendant to prepare his defense and the jury to clearly understand the nature of the offense, and the indictment is exact enough to protect the defendant from a second jeopardy." Hawkins v. State, 58 Ga.App. 386, 387, 198 S. E. 551, 552, and cit; Ray v. State, 47 Ga. App. 22, 169 S.E. 538; Collins v. State, 51 Ga.App. 147, 179 S.E. 869. The demurrer to the indictment was properly overruled.

2. J. D. Towe, whose wife was killed and who was driving the car which the defendant ran into, testified for the state as follows: "As to just how that collision took place; gentlemen, I had been out to my father's and had my family with me which consisted of my wife and little girl, and when I came to that curve; my wife is extremely afraid of automobiles; hadn't been out in the car since last September; my father is in bad health and we had been down there; we come to that curve, and I was driving just as close to the bank on my right side as I could get, and I seen two cars racing; one was coming and the other one was by him, and he run just as straight into me as he could; I could do nothing but face death coming into me. * * * As to whether or not I have any opinion as to how fast that car was running that ran into me, he couldn't have been making less than fifty, because it hit so hard, it turned it around and turned over in the road; he couldn't have been making much less than that."

Corris Adcock, the driver of the car the defendant was passing at the time of the accident, testified: "Jesse Passley was driving the car that was behind me. Then I met Mr. Towe on a curve. * * * 1expect I was about fifteen or twenty feet from Mr. Towe's car when the collision occurred. I think I had already passed Mr. Towe's car and had cleared it. I heard the collision, and I stopped as quick as I could and started back. As to whether or not I saw Mr. Towe's car when I got out, I saw both of them. With reference to which side of the highway, Mr. Towe's car was on the right, on Towe's right hand side, but I don't hardly know how near the edge of the bank, but giving the jury some idea, it was something like six feet, I guess. When I met Mr. Towe he was on his side. * * * As to where Passley's car was after the collision, which side of the...