Smith v. State

• Decision Date: 13 July 1948
• Docket Number: 16228.
• Citation: 48 S.E.2d 860,204 Ga. 184
• Parties: SMITH v. STATE.
• Court: Georgia Supreme Court

48 S.E.2d 860

204 Ga. 184

SMITH v. STATE.

No. 16228.

Supreme Court of Georgia

July 13, 1948

Rehearing Denied July 28, 1948.

Syllabus by the Court.

1. The evidence was sufficient to authorize the jury to find that the homicide occurred in the commission of an unlawful act which in its consequences naturally tended to destroy the life of a human being.

2. In the circumstances of this case there was no error in refusing to declare a mistrial on account of the alleged improper remark of the solicitor general in his concluding argument to the jury.

3. There being some direct evidence tending to show the guilt of the accused, it was not error to omit an instruction on the law of circumstantial evidence, without a request therefor.

ATKINSON WYATT, and HEAD, JJ., dissenting.

Sam Smith was convicted of the offense of murder with a recommendation of mercy. The indictment charged that on September 3, 1947, in Wilkinson County, he 'did then and there unlawfully, and with force and arms, make an assault in and upon one Alma Key with an automobile while driving same at a rate of speed greater than allowed by law and while under the influence of intoxicating liquor in the peace of God and said State then and there being, then and there unlawfully, feloniously, wilfully and of his malice aforethought and with reckless disregard for human life, did kill and murder, by driving the said automobile in said unlawful manner on, over, and into another automobile in which said Alma Key was riding as a passenger, causing a collision and by same then and there giving to the said Alma Key then and there a mortal wound, of which mortal wound the said Alma Key died.' The defendant entered a plea of not guilty.

The State made out substantially the following case: The collision, which resulted in the instant death of Miss Alma Key, occurred about five o'clock in the afternoon at a 'moderate' curve on the Irwinton-Toomsboro unpaved road, about one-half mile from Toomsboro. The decedent and Mrs. Sybil Balkcom had engaged Mr. Harold Walker, a taxi-cab operator, to take them to their school in Toomsboro. Mrs. Balkcom testified that they were driving about 35 or 40 miles per hour, and on their right side of the road, when the defendant's car came around the curve at a fast rate of speed and on their side of the road; that the cars would have been obliged to collide head-on had they continued, and as a result of the defendant driving on their side of the road on the curve the cars did collide, the defendant's car hitting Mr. Walker's car at the right front door; that the road was bad at that time, and drivers were inclined to travel on the better part to avoid the rough places.

George Hatcher, Sheriff of Wilkinson County, testified that the tire tracks on the road showed that Mr. Walker's car was on its right or proper side of the road as it went into the curve which turned to the left, and that the defendant's car was on its left or wrong side of the road as it rounded the curve, and when the cars were about 50 feet apart Mr. Walker quickly turned to the left, and the defendant turned to his right, and the defendant's car went into the right front door of Mr. Walker's car; that the cars collided near the center of the road; that the condition of the cars showed that the defendant must have been driving at a high rate of speed at the time of the collision; that his Nash automobile had gone into the right side of Mr. Walker's car to within 18(12) inches of its windshield; that a high impassable bank on Mr. Walker's right would have prevented him from turning in that direction; that the road at that time and place appeared to be in a good condition of repair, with nothing apparent to cause one to drive on a better part of the road; that he saw the defendant shortly after the collision and he had the odor of an intoxicating beverage on his breath, and did not appear to be normal; that his eyes showed that he was under the influence of some kind of intoxicant; that the defendant admitted that he had drunk two bottles of beer.

Woodrow Thompson testified that he saw the defendant pass the cross-roads at Toomsboro going in the direction of Irwinton, around 4 or 5 o'clock in the afternoon at a 'terrific' rate of speed, estimated to be at least 60 miles per hour; that he didn't slow down for the cross-roads and continued at the fast speed until he passed over a hill and out of his sight; that the collision occurred about one-half mile below the cross-roads.

The defendant made the following statement to the jury: 'Gentlemen of the Jury, I was traveling west, Mr. Walker was traveling east. When I passed Mr. Thompson's store I was not driving over 40 miles an hour. Mr. Thompson is a good man but he just made a wrong statement. When I rose this hill and went down the other and started up this other little hill Mr. Walker, he come around that curve. I was driving nearly in the center of the road; he was too. I was pulling the shades down, the sun was beaming right down in my windshield and I was pulling the shade down where I could see the road good. One of the boys said, 'Look out,' and I saw the car. I threw my car to the right. I thought he was going to keep on. Just as soon as he got right in front of me he cut across right in front of me and if there had been any way in the world I could have kept from doing it, I would have done it. * * * I was not under the influence of whisky, I only drank two bottles of beer, one that morning and one that afternoon, and I was not driving over 40 miles an hour when it happened. That is all.'

The exception is to the overruling of a motion for new trial on the general grounds and two special grounds.

J. B. Jackson and Jackson & Jackson, all of Gray, for plaintiff in error.

C. S. Baldwin, Jr., Sol.Gen., of Milledgeville, Eugene Cook, Atty. Gen., and Dan P. Winn, of Atlanta, for defendant in error.

CANDLER, Justice (after stating the foregoing facts).

1. On the general grounds of the motion for new trial it is insisted by the plaintiff in error that the evidence was insufficient to authorize the jury to find that the killing happened 'in the commission of an unlawful act, which in...