Payne v. State, 31310.

• Decision Date: 04 December 1946
• Docket Number: No. 31310.,31310.
• Parties: PAYNE. v. STATE.
• Court: Georgia Court of Appeals

40 S.E.2d. 759

PAYNE.

v.STATE.

No. 31310.

Court of Appeals of Georgia,

Division No.

Dec. 4, 1946.

Rehearing Denied Dec. 19, 1946.

Syllabus by the Court

1. The jury were authorized to find that there was a wanton and reckless state of mind which denoted an abandoned and malignant heart and which was the equivalent of a specific intention to kill and which could be treated by the jury as amounting to such intention on the part of the defendant when it produced violence likely to result in death, though not so resulting in this instance. Gallery v. State, 92 Ga. 463(2), 17 S.E. 863; Code, § 26-202; Code, § 26-1004. The evidence authorized the conviction of assault with intent to murder.

2. The special assignments of error show no cause for a new trial, and the court did not err in overruling the motion for new trial.

Error from Superior Court, Franklin County; Clark Edwards, Judge.

Ralph Payne was indicted for assault with intent to murder, and he brings error. Judgment affirmed.

Ralph Payne was indicted for assault with intent to murder and convicted of that offense. The court overruled his motion for a new trial containing the general and six special grounds, and to that judgment Payne excepted.

The indictment substantially charges that on April 2, 1945, in Franklin County, Georgia, Ralph Payne feloniously, wantonly and with reckless disregard for human life, drovf, a Chevrolet coupe automobile on and over that public road and street known as State route No. 17, and at a certain street intersection in the city of Lavonia, said county, at a speed greater than fifty-five miles per hour, and a rate of speed greater than twenty-five miles per hour within said City of Lavonia, without stopping before entering said intersection, and in violation of the right-of-way of an automobile driven by M. R. Shirley and occupied by said Shirley, Frank Haley, Elijah Walters and Kyle Sewell; and "as a result of said unlawful acts * * * and the reckless and wanton and unlawful operation of said automobile by the said Payne, the same was driven * * * against the automobile of M. R. Shirley, * * * inflicting on the said Elijah Walters and Frank Haley serious * * * wounds, with intent to kill and murder the said Shirley, Haley, Walters and Sewell."

The collision occurred at about six o'clock P. M. on April 2, 1945, on the intersection of State route No. 17 with State route No. 59 in the City of Lavonia, Franklin County, Georgia, said intersection being also a street intersection of Lavonia. The general direction of Route 17 from Toccoa to Lavonia and on to Royston is southeasterly, and the general direction of Route 59 from Carnesville to Lavonia and on towards the South Carolina line is northeasterly. These roads cross at about right angles in the City of Lavonia. At the time of the collision Ralph Payne was driving a Chevrolet automobile on Route 17 from the direction of Toccoa towards Lavonia, and M. R. Shirley had just entered the intersection and was headed towards Carnesville on Route 59. Hick's drug store was at the northeast corner of said intersection; at the southeast corner of the intersection, and across Route 19 from Hick's drug store, was the Gulf filling station; at the southwest corner of said intersection, and across Route 17 from the Gulf station, was Pur-cell's filling station; and at the northwest corner of said intersection, and across Route 17 from Hick's drug store, was Cannon's store. At each corner of said intersection was a stop-sign.

M. R. Shirley testified in part substantially that he got a quart of oil at the Gulf Station, entered Route 17 and drove his. Ford car towards the intersection, stopped at the stop-sign and gave a left turn sign, and had just made his left turn towards Carnesville when defendant's automobile traveling between fifty and sixty miles an hour, struck his automobile near the middle of its right side and knocked it down the highway towards Royston sixty or sixty-five feet; that he didn't think he was moving over five or ten miles an hour when Payne's car struck his; that he could see up the highway towards Toccoa fifty or seventy-five yards from the place where he stopped, but that when he went a little further he could see "up two hundred yards, " and that the defendant was traveling so fast that witness did not see him until he almost hit his car, and "I had my turn developed and there was no way to get out of his way;" and that the collision occurred "on the right hand side of the lane of the highway 17 going from Toccoa towards Bowersville, and that was the side on which Mr. Payne's car was then traveling from Toccoa to Royston."

J. R. Alewine, sworn for the State, testified substantially in part that he was at the curb by Hick's drug store when the collision occurred; that he was looking towards Toccoa and could see three or four hundred yards up the road; that defendant was driving his automobile "at around fifty-five or sixty miles an hour, " and did not stop at the stop-sign, or make any effort to put on his brakes, and did not blow his horn so far as witness knew; that "Payne hit Shirley in his right front wheel" near the center of the intersection and knocked it what witness thought was thirty-five or forty feet; that Payne's car went over a fire plug and hit a tank at Purcell's filling station and "knocked it out of commission;" and that Elijah Walters was knocked unconscious and carried to the hospital.

Joe Brown, a member of the State Patrol sworn for the State, testified substantially that he arrived at the scene of the collision about thirty minutes after it happened; that the "marks" showed that the Ford automobile was knocked fifty-nine feet; that Payne's car must have been running at a rapid rate of speed because it traveled sixty-four feet after the impact, and it could have been stopped in 42 or 43 feet if it had been running sixty miles an hour and had brakes; that Shirley's car was struck "on the right front;" that he thought Shirley's car had the right-of-way because defendant admitted that he went by the stop-sign at a high rate of speed; that he did not know whether Shirley had stopped, but the "marks" indicated that his car had stopped; that it was a big intersection and there was a stop-sign at each corner; that if a person comes to a stop and does not see another car coming he could go ahead, but that he should stop if he sees another car approaching; that witness rode with defendant to the hospital and was with him over an hour and he seemed to be normal.

Tom Ed Maxwell, sworn for the State, testified substantially that he was at the Gulf station and saw the collision clearly; that it was about sundown; that "Shirley came straight out from the filling station into the intersection" and "was in the intersection when he was struck"; that Payne's car came from Toccoa "making about fifty-five or sixty miles an hour, " and he never stopped at all; that he did not apply his brakes or blow his horn before the collision; that he hit Shirley's car in its right side near the middle in about the middle of the intersection; that defendant was driving the Chevrolet automobile, and knocked Shirley's car, "say thirty or forty yards, maybe a little further;" that Elijah Walters, Kyle Sewell and Frank Haley were in the automobile with Shirley, and Walters was knocked out of the car on the pavement and hurt; that Shirley "came right out from the station on the Bowersville road and he hit the Carnesville road, and "rode out into the intersection and hadn't got out of low gear;" that Payne was going about fifty-five or sixty miles an hour, and Shirley's car was just moving; that Shirley was "in the intersection of both roads--right in the middle of the road;" that defendant "wasn't as drunk as I have seen them, but he smelled of whisky;" that defendant staggered when he walked but was hurt; that despite the fact that both the defendant and Shirley drove past a stop-sign without stopping, Shirley "moved slowly out in the road * * * in lowgear, " and defendant was running too fast and Shirley had the right-of-way.

Dwight Adams, sworn for the State, testified that he was a policeman in Lavonia and arrived at the scene of the collision five or ten minutes after it occurred; that he helped trooper Brown make his measurements, and Shirley's car was knocked sixty or sixty-five feet "in a reverse direction;" that defendant was charged with "reckless driving" and gave bond; that the defendant had the odor of some intoxicant on him, but that he appeared to be normal except that he was excited like most people would be after a collision.

Dr. S. D. Brown, sworn for the State, testified substantially that he took several stitches in the defendant's lip two or three hours after the collision; that he put a notation in his record after the operation that defendant was "intoxicated;" that there was "a court Case against him" that he wasn't drunk, but that it was evident that he had something to drink; that he had known defendant for a year or a year and a half and "never knew of his being under the influence of intoxicants before that time;" that just before operating on the defendant witness treated Elijah Walters at witness' hospital and his collar bone was fractured, his head was violently injured, and he was unconscious and remained in the hospital for eleven days "mentally completely out;" (There is also abundant evidence that Elijah Walters was in good health before the collision, but that he lost his mind shortly thereafter and was committed to the State hospital at Millcdgeville as a lunatic). The State also-introduced in evidence a certified copy of an ordinance of the city of Lavonia prohibiting the driving of a motor vehicle within the corporate limits of Lavonia "at a rate of speed greater than 30 miles per hour."

Shelton Royston, sworn for the defendant, testified that he talked to the defendant shortly after the collision and did not smell whisky on him, and that he talked...