Wells v. State, 21920.

• Citation: 44 Ga.App. 760,162 S.E. 835
• Decision Date: 17 February 1932
• Docket Number: No. 21920.,21920.
• Parties: WELLS. v. STATE.
• Court: United States Court of Appeals (Georgia)

44 Ga.App. 760

162 S.E. 835

WELLS.

v.STATE.

No. 21920.

Court of Appeals of Georgia,

Division No. 1.

Feb. 17, 1932.

Syllabus by the Court.

1. The essential elements of the offense of involuntary manslaughter in the commission of an unlawful act are, first, the intentional commission of an unlawful act, and, second, the killing of a human being without having so intended, but as the proximate result of such intended act.

(a) The unlawful act may, of course, be of such a nature as to make the resulting homicide murder and not involuntary manslaughter, as (1) where the intended act causing the unintentional death is itself a felony, or (2) where such an act is one which in its consequences naturally tends to destroy human life, or (3) where it is committed in the prosecution of a riotous intent. The absence of an intention to kill will not, in either of these instances, reduce the killing from murder to involuntary manslaughter, but will do so in all other instances.

(b) Judged by these rules, the first and second counts of the indictment, charging the offense of involuntary manslaughter in the commission of an unlawful act, are sufficient to withstand the demurrer.

2. The third count of the indictment, charging the offense of involuntary manslaughter in the commission of a lawful act without due caution and circumspection, is also sufficient to withstand the demurrer urged against it.

Error from Superior Court, "Whitfield County; C. C. Pittinan, Judge.

M. A. Wells and another were charged with involuntary manslaughter, judgment was entered overruling defendants' joint demurrer to the indictment, and defendant named brings error.

Affirmed.

H. A. Allen, of Atlanta, and J. A. McFarland, Wright Mitchell, and Carter Pittman, all of Dalton, for plaintiff in error.

John C. Mitchell, Sol. Gen., of Dalton, for the State.

LUKE, J.

Fred Killian and M. A. Wells were jointly indicted for the offense of involuntary manslaughter. Wells alone excepts to the judgment overruling their joint demurrer to the indictment. The demurrer is general in its nature, though special in form. The indictment contains three counts--the first and second charging the offense of involuntary manslaughter in the commission of an unlawful act; the third involuntary manslaughter in the commission of a lawful act without due caution and circumspection.

The first count makes substantially the following case: The defendants Killian and Wells, were employees of the state highway board, and were supervising construction work being done on a state-aid road in Whitfield county. The deceased, Thomas Farmer, was a convict in the custody and control of wardens and guards appointed by the prison commission of Georgia. The manual labor necessary in the road construction work was being done by convicts, Farmer among them. On the 30th of June, 1931, while Farmer was at work on the road, in the sunshine, with the thermometer standing at or above 100 degrees, he became ill from the excessive...