Powell v. State

• Decision Date: 15 January 1942
• Docket Number: 13881.
• Citation: 18 S.E.2d 678,193 Ga. 398
• Parties: POWELL v. STATE.
• Court: Georgia Supreme Court

18 S.E.2d 678

193 Ga. 398

POWELL v. STATE.

No. 13881.

Supreme Court of Georgia

January 15, 1942

Rehearing Denied Feb. 12, 1942.

Syllabus by the Court.

1. If an involuntary homicide shall happen in the commission of an unlawful act such as in its consequences naturally tends to destroy the life of a human being, the offense may be adjudged to be murder.

2. The term 'highway' or 'public highway' as used in the statutes regulating the operation of motor vehicles is not confined to roads forming a part of the State highway system, but covers all public roads in the State.

3. The defendant's conviction was not dependent solely upon circumstantial evidence, and in the absence of a proper request, the court's failure to instruct the jury on the law of circumstantial evidence was not error.

4. The verdict of the jury was authorized.

Herman alias Buddy, Powell was convicted of murder, and sentenced to life imprisonment. His motion for new trial was overruled and he excepted. The indictment charged that the defendant killed Mrs. Lillian Cox by running into and against her with an automobile. The proof shows that an automobile driven by the defendant collided with another in which the decedent was riding, and which was being driven by her daughter; that the cars were meeting; that the decedent's car was on its right side of the road, and almost ran into the ditch just before the collision, because the driver was seeking to 'dodge' the approaching car of the defendant and the ditch; that the defendant's car 'was coming kindly across the road;' and that the driver of the decedent's car 'was on the right side of the road' and the defendant 'ran into our car.' The physical facts testified to by a witness who visited the place shortly after the collision strongly corroborated the testimony of the driver of the decedent's car. Testimony offered by the State, but disputed by the defendant, indicated that the defendant was under the influence of liquor. The collision happened about 7:30 p. m., March 16, 1941, on the 'Bee-Line Highway' about a half-mile west of Wrightsville, which is about the standard width of a State highway.

J. Roy Rowland and Emory L. Rowland, both of Wrightsville, for plaintiff in error.

J. Eugene Cook, Sol. Gen., and Emory S. Baldwin, Jr., both of Dublin, Ellis G. Arnall, Atty. Gen., E. J. Clower, Asst. Atty. Gen., and C. E. Gregory, Jr., of Decatur, for defendant in error.

REID Chief Justice.

1. Ordinarily to kill a human being without any intention to do so is involuntary manslaughter, which may be a crime of done in the commission of an unlawful act, or if done in the commission of a lawful act, but without due caution and circumspection; but 'where such involuntary killing shall happen in the commission of an unlawful act which, in its consequences, naturally tends to destroy the life of a human being * * * the offense shall be deemed and adjudged to be murder.' Code, § 26-1009. Whether such an unlawful act is one that naturally tends to destroy a human life is a question of fact to be determined by a jury. Thus, while an automobile is not per se a deadly weapon, it may be so operated as to destroy human life, and if the driver of an automobile operates it in violation of the law, and the unlawful manner of operation is such as the jury may find naturally tends to destroy human life, a homicide resulting from such operation may be adjudged to be murder. Butler v. State, 178 Ga. 700, 173 S.E. 856; Jones v. State, 185 Ga. 68, 194 S.E. 216; Meadows v. State, 186 Ga. 592, 199 S.E. 133.

2, 3. The only special ground of the motion for a new trial assigns error upon the failure of the judge to charge the jury upon the law of circumstantial evidence. It is contended not that there was a request so to charge, but that the conviction...