Turnipseed v. State, 75169

• Decision Date: 09 March 1988
• Docket Number: No. 75169,75169
• Parties: TURNIPSEED v. The STATE.
• Court: Georgia Court of Appeals

Page 259

367 S.E.2d 259

186 Ga.App. 278

TURNIPSEED v. The STATE.

No. 75169.

Court of Appeals of Georgia.

March 9, 1988.

Donald F. Samuel, Atlanta, for appellant.

Robert E. Wilson, Dist. Atty., John H. Petrey, Asst. Dist. Atty., for appellee.

BEASLEY, Judge.

Turnipseed appeals his sentence and conviction for felony involuntary manslaughter, OCGA § 16-5-3 (a), based on the underlying misdemeanor of reckless conduct, OCGA § 16-5-60, in this case in which a child was killed by three pitbull terriers owned and maintained by Turnipseed.

1. The first enumeration is that the trial court erred in denying the general demurrer challenging the indictment on the grounds that it failed to state an offense under Georgia law and failed to allege the commission of an unlawful act as required by OCGA § 16-5-3.

Appellant maintains that the offense of reckless conduct cannot be used as the underlying unlawful act for a conviction of felony involuntary manslaughter because it would render meaningless subsection (b), the misdemeanor grade of involuntary manslaughter involving the commission of a lawful act in an unlawful manner. He argues that any conviction under the misdemeanor portion of OCGA § 16-5-3 represents the commission of some act in a criminally negligent or criminally reckless manner; that reckless conduct is the sine qua non of misdemeanor involuntary manslaughter and therefore if engaging in reckless conduct is the only predicate required for a conviction under subsection (a), then every misdemeanor manslaughter offense also represents a felony involuntary manslaughter offense. He further argues that felony involuntary manslaughter requires that a defendant intentionally commit the underlying act, so that if recklessness is all that is charged, the element of criminal intent is eliminated. Finally, he urges that the indictment failed to identify what unlawful act was committed which led to the death, because merely charging that the death resulted from engaging in reckless conduct sets out a misdemeanor offense and no more.

The indictment tracks the language of OCGA §§ 16-5-60 and 16-5-3 (a) and therefore sufficiently states the offense with which defendant was charged. OCGA § 17-7-54; Moran v. State, 170 Ga.App. 837, 841(2), 318 S.E.2d 716 (1984).

The indictment is not defective, as appellant urges, on the ground that felony involuntary manslaughter is predicated on the underlying offense of reckless conduct. Reckless conduct which includes the element of criminal intent is a misdemeanor and satisfies the requirement under OCGA § 16-5-3 (a) of "an unlawful act other than a felony." Appellant fails to recognize the criminal intent aspect of the underlying offense, the unlawful act of "conscious disregard" delineated in the statute and described in the indictment. See Lewis v. State, 180 Ga.App. 369, 371(3), 349 S.E.2d 257 (1986).

It likewise is not the law that if the only unlawful act charged is reckless conduct, the charge must be misdemeanor involuntary manslaughter. A charge of violation of OCGA § 16-5-3 (b) is not appropriate under such circumstances because criminal reckless conduct is not a lawful act within the context of OCGA § 16-5-3 (b). Saylors v. State, 251 Ga. 735, 737(3), 309 S.E.2d 796 (1983); Crawford v. State, 245 Ga. 89, 91(3), 263 S.E.2d 131 (1980).

The indictment was not demurrable on the grounds urged.

2. Appellant contends that the evidence was insufficient to sustain a conviction for felony involuntary manslaughter, specifically, that an unlawful act of criminal reckless conduct was not proved. The reckless conduct charged was, in short, "keeping" the terriers and "[omitting] to adequately secure" them.

He maintains that at the time of the victim's death there was no law in Georgia forbidding the ownership of pitbull terriers or which expressly outlawed any specific act committed by him and therefore, that none of his actions constituted criminal reckless conduct. He points to the civil liability of pet owners in the law of negligence as persuasive in determining that his conduct was not criminal, to wit, principles of foreseeability, "one bite," and vicarious liability.

To begin with it is error to inject rules governing civil liability into a situation of assessing criminal responsibility. See Edmonds v. State, 98 Ga.App. 827(1), 107 S.E.2d 286 (1959); Cain v. State, 55 Ga.App. 376, 379(1), 190 S.E. 371 (1937). Rather, the State's obligation was to show that Turnipseed consciously disregarded a substantial and unjustifiable risk that his conduct would cause harm or endanger the safety of another person and that such disregard constituted a gross deviation from the standard of care which a reasonable person would exercise in the situation. OCGA § 16-5-60; Horowitz v. State, 243 Ga. 441, 254 S.E.2d 828 (1979).

While it is true that at the time of the attack on the child, there was no state law specifically forbidding the ownership of pitbull terriers or specifically outlawing any one of Turnipseed's isolated acts regarding the dogs, this did not preclude the jury from finding that the acts of keeping the dogs in the circumstances evidenced, and leaving them unguarded, all with the knowledge of past incidents, built up to reckless conduct on this occasion. Such is a crime. OCGA § 16-5-60.

The evidence, construed so as to uphold the verdict, Rhodes v. State, 168 Ga.App. 10, 11(1), 308 S.E.2d 33 (1983), showed that for a number of years prior to the fatal attack on Billy Gordon, Turnipseed owned and raised pitbull terriers in his home in a residential area where there were many children. Turnipseed had heard about how the breed "hurt kids and stuff, ... heard about how pits jump on kids and bite them on the heads and stuff"; he knew that others had complained about the breed. Turnipseed liked the dogs, which were his favorite breed, because of the way they acted by running around his home, bumping into walls, lifting a two-by-four piece of wood and protecting the house.

He felt the dogs did not have to be trained to be protective, that they were born that way and that "[a]ll you got to do is keep them off from around people and they won't like nobody but the people who feed them." Turnipseed stated that he tried to keep the dogs away from other people. He strapped weights to the dogs and ran them to build up their chests and their legs. He had been told by his neighbors, policemen, and animal control officers that his dogs were a problem. Turnipseed knew that his dogs had been getting out of his house and outside of his yard and how they were accomplishing this. The animals were able to escape the house on numerous instances because of missing or broken doors, windows, etc. Turnipseed thought his dogs were capable of jumping a seven-foot fence. He never put a lock on the fence gate. The dogs fought with each other and Turnipseed knew that they had chased people in the neighborhood including children and had tried to kill another animal. He also knew that two of his dogs had been shot and killed by police officers because the dogs had attacked the officers. Turnipseed himself shot one of the dogs for...