Wellons v. State

• Decision Date: 16 July 1948
• Docket Number: 32032.
• Citation: 48 S.E.2d 922,77 Ga.App. 652
• Parties: WELLONS v. STATE.
• Court: Georgia Court of Appeals

48 S.E.2d 922

77 Ga.App. 652

WELLONS v. STATE.

No. 32032.

Court of Appeals of Georgia, Division No. 2.

July 16, 1948

Rehearing Denied July 31, 1948.

Syllabus by the Court.

1. The evidence sustains the verdict.

2. Where, as here, an unlawful act is committed resulting in the injury or death of two or more persons in the operation of a motor vehicle, the accused may be convicted of a crime where two or more persons are the victims, without violating the constitutional provisions as it relates to former jeopardy.

Fred Wellons, whom we shall call the defendant, was convicted at the March Term of Peach Superior court for the offense of assault and battery. The evidence relied on by the State reveals that on the 6th day of September, 1947, the defendant, while operating an automobile through the incorporated limits of the City of Fort Valley 'intentionally and in a reckless and wanton disregard of human safety, thereby striking and beating the said W. L Johnson by causing him to be struck by said automobile and to be thrown violently' from a bicycle on which W. L. Johnston was riding. Before pleading to the merits, the defendant filed a plea of former jeopardy, or autre fois convict. The plea contained an indictment against the defendant in which he was accused of murdering one Lonnie Bellflowers on the same occasion, and time, and place. The plea alleged that the defendant was convicted for involuntary manslaughter in the commission of an unlawful act, and was sentenced to a term of years in the penitentiary. The plea of autre fois convict of the defendant in the killing of Lonnie Bellflowers was alleged to be on the same occasion as the occasion involved in the indictment against the defendant for the assault and battery upon W. L. Johnston in the instant case. On motion by the State, the plea of autre fois convict was dismissed. The defendant thereupon filed exceptions pendente lite to the judgment of the court overruling such plea in bar. Thereafter, by consent of the defendant and the State, the instant case proceeded to trial before the judge of the superior court, without a jury. After introduction of evidence and argument, the trial judge found the defendant guilty of assault and battery as a matter of law and fact.

The evidence in the instant case of the State against the defendant wherein he was accused of the unlawful killing of Lonnie Bellflowers was substantially that Lonnie Bellflowers was operating a bicycle at night to the extreme right side of a street in the City of Fort Valley. Riding behind him on the bicycle was W. L. Johnston. While thus operating the bicycle, the defendant, who was operating his automobile going in the same direction as the bicycle, accompanied by several companions who were riding in the car, overtook the bicycle which Bellflowers was operating. The automobile of the defendant was at the time being operated at the speed of between 40 and 45 miles per hour, greatly in excess of the speed limit authorized by an ordinance of the City of Fort Valley. In doing so, he ran the automobile into the bicycle and against Bellflowers and Johnston with great force and violence, thereby and then inflicting injuries on Bellflowers which resulted in his death and bruising and injuring Johnston at the same time. The evidence reveals that the bicycle was demolished; that the windshield of the automobile was broken (indicating that Bellflowers was caused to strike the windshield) that the radio aerial of the automobile was dislocated and that the lamp and right fender was greatly damaged. The defendant, after striking the bicycle, did not stop his car to investigate the result of the collision. He proceeded toward Perry, Georgia. Before reaching that point, the defendant returned to Fort Valley, and in a clandestine manner made an effort to have his automobile repaired. The defendant contended that the impact of his car and the bicycle was caused by the defendant being blinded from the lights of an automobile which he was meeting at that time and place. The State's evidence contradcited this contention of the defendant to the effect that there was no car approaching.

The indictment on which the defendant was convicted for the unlawful killing of Bellflowers was returned by the Grand Jury of Peach County at the November Term, 1947, and subsequently the indictment for assault and battery on Johnston was returned at the March Term, 1948. This last indictment is the one in the instant case. Both indictments are identical except that the former indictment alleged the killing of Bellflowers and the second alleged an assault and battery upon Johnston. The instant case is here assigning error (a) that the evidence does not support the verdict; (b) that the court erred in overruling the plea of autre fois convict.

Jule & A. C. Felton, III, of Montezuma, for plaintiff in error.

Chas. H. Garrett, Sol. Gen. and Wm. M. West, Asst. Sol. Gen., both of Macon, for defendant in error.

GARDNER Judge.

1. While error is assigned on the general grounds, it is not seriously contended by distinguished counsel for the defendant, that the evidence does not sustain the verdict on the general grounds. Therefore, we will not here discuss the general grounds other than to say that the evidence sustains the verdict in the instant case.

2. But it is earnestly and learnedly contended that the verdict in the instant case should be set aside because the court erred in sustaining the motion to strike the plea of autre fois convict under the provisions of the Constitution. Const. 1945 Art. 1, § 1, par. 8, Code, section 2-108. The only decision in this State almost identical to the question now before us on that question is the case of Webb v. State, 68 Ga.App. 466, 23 S.E.2d 578. It is contended that under the same transaction test which is contended obtains in this State, that the defendant having been previously convicted for the unlawfull killing of Bellflowers can not subsequently be again put in jeopardy under the same transaction test for assault and battery on Johnston. The facts involved are undisputed. The only question then, which is...