Wallace v. State, 20921
| Decision Date | 07 July 1960 |
| Docket Number | No. 20921,20921 |
| Citation | 216 Ga. 180,115 S.E.2d 338 |
| Parties | Carl M. WALLACE v. The STATE. |
| Court | Georgia Supreme Court |
Reuben A. Garland, John H. Hudson, Reuben A. Garland, Jr., Atlanta, for plaintiff in error.
Paul Webb, Solicitor-Gen., Carl B. Copeland, Thomas R. Luck, Jr., Eugene L. Tiller, Atlanta, Eugene Cook, Atty. Gen., Rubye G. Jackson, Asst. Atty. Gen., for defendant in error.
Syllabus Opinion by the Court
The defendant was indicted, tried and convicted of the murder of a policeman in Fulton County, Georgia. The indictment was in two counts, the first alleging that the defendant made an assault with an automobile, 'the same being a weapon likely to produce death,' with malice aforethought, upon the deceased who was riding a motorcycle upon a public highway of Fulton County, thereby knocking the deceased to the ground and inflicting the wounds from which he died; and the second count alleging that the accused did kill the deceased without any intention of doing so, but maliciously in the commission of an unlawful act by operating an automobile under the influence of intoxicants and at a greater rate of speed than 60 miles per hour by knocking the deceased from the motorcycle on which he was riding on a certain highway in the corporate limits of the City of Atlanta of said Fulton County, thereby inflicting the wounds from which he died. Demurrers were filed to count II, and after a hearing overruled. Exceptions are taken to this ruling and to a later ruling denying a motion for new trial as amended, containing 10 special grounds. Held:
1. Count II of the indictment charges in correct and technical terms the language of the Code, and the nature of the offense can be easily understood by the jury as required by Code § 27-701. However, counsel for the plaintiff in error insists that the words, 'without any intention to do so, but maliciously in the commission of an unlawful act,' are confusing and conflicting in that they confuse the crime of involuntary manslaughter with murder, and are contradictory in that they charge murder with intent as well as murder without intent and should have been stricken on demurrer. While there may be murder without intent under Code § 26-1009, there must be malice as there can be no murder without malice, express or implied. Code § 26-1002; Gates v. State, 95 Ga. 340, 22 S.E. 836; Wright v. State, 166 Ga. 1, 4, 141 S.E. 903; Jones v. State, 185 Ga. 68, 70, 194 S.E. 216. The words, 'maliciously in the commission of an unlawful act,' do not negative the charge of murder without intent but are merely allegations of malice, and the court did not err in overruling the demurrers to count II.
Nor is there any merit in special ground one of the amended motion for new trial, complaining that the jury should not have been allowed to consider count II for the same reasons argued above; or special grounds 7 and 8, which allege that the indictment attempted to charge different offenses of murder under Code §§ 26-1009 and 26-1002. As murder is the same under both Code sections whether it is done with or without the intention to kill, and there can be no murder without malice, there is no merit in any of these grounds.
2. While the two counts of the indictment charge murder with intent to kill and murder without the intent to kill, the jury had ample evidence to support its verdict under count II, since it showed that the defendant committed the crime in the commission of unlawful acts which naturally tend to destroy human life, and death resulted therefrom. Nor did the failure to return a verdict of guilty on count I require an acquittal of count II, as argued by counsel for the movant, and the general grounds of the motion for new trial are without merit.
3. The evidence shows clearly that a witness for the State testified that the scene of the accident was on Marietta Boulevard, which is located in Fulton County, Georgia. Further, the death certificate, submitted in evidence, shows that the deceased was killed on a street of the City of Atlanta, Fulton County, Georgia, and on several...
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