Williams v. State

• Decision Date: 15 January 1958
• Docket Number: No. 2,No. 36932,36932,2
• Citation: Williams v. State, 101 S.E.2d 747, 96 Ga.App. 833 (Ga. App. 1958)
• Parties: Charlle WILLIAMS, Jr. v. The STATE
• Court: Georgia Court of Appeals

Page 747

101 S.E.2d 747

96 Ga.App. 833

Charlle WILLIAMS, Jr. v. The STATE.

No. 36932.

Court of Appeals of Georgia, Division No. 2.

Jan. 15, 1958.

R. L. LeSueur, R. L. LeSueur, Jr., Americus, for plaintiff in error.

Charles Burgamy, Sol.-General, Americus, for defendant in error.

Syllabus Opinion by the Court.

TOWNSEND, Judge.

1. The defendant was tried and convicted in the Superior Court of Sumter County for the offense of involuntary manslaughter while in the commission of an unlawful act. To the judgment of the trial court denying the motion for a new trial as amended he brings error.

(a) '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.' Wells v. State, 44 Ga.App. 760, 162 S.E. 835, 836. Accordingly, where one is charged with involuntary manslaughter in the commission of an unlawful act, the unlawful act named in the indictment must be proved in the manner alleged, since it is one of the essential elements of the offense charged.

(b) 'Since, however, a public highway is one of the places where the offense [of driving while intoxicated] may be committed, if the indictment or accusation alleges that the offense was committed on a stated 'public highway,' the proof should show that it was a public highway, and in the absence of such proof the evidence would be insufficient to support the verdict'. Jordan v. State, 212 Ga. 337, 339, 92 S.E.2d 528, 530.

(c) The accused is charged with involuntary manslaughter in that he wrecked his automobile and killed two passengers therein as follows: 'Accused did drive and operate an automobile along and upon that certain public road in said county known as the Upper River Road and did violate the law in the following respects: (a) Accused did drive and operate said automobile along and upon the Upper River Road after more then one-half hour after sunset and before one-half hour before sunrise at a greater rate of speed than 50 miles per hour. (b) Accused did drive and operate said automobile along and upon the Upper River Road while he the accused was under the influence of intoxicating liquor.' Accordingly, applying the rules above stated, it was necessary for the State, in order to prove that part of the indictment which alleges the unlawful acts of driving in violation of law, to show that the Upper River Road was in fact a public highway. There is no evidence to this effect. While this court will take judicial notice that those highways shown upon the maps approved and filed by the State Highway Board in the office of the Secretary of State as the authoritative record of State-aid roads are in fact public highwayw (Jordan v. State, supra), the road upon which the act was committed appears in the evidence only as 'Upper River Road' or 'New Era Road', without further designation, and no such road is shown by the maps of the State Highway Department on file with the office of the Secretary of State. The evidence is accordingly insufficient to support the allegation of the indictment that Upper River Road is a public road of this State, and ground 1 of the motion for a new trial should have been sustained. See also Dockery v. State, 95 Ga.App. 486, 98 S.E.2d 123.

2. (a) Special grounds 2 and 3 complain of the charge of the court relating to the offense of driving while under the influence of intoxicating liquor, on the ground that there was no evidence in the record which would support a jury finding that the defendant was guilty of this unlawful act. According to the evidence, the first witness to arrive at the scene, a State Trooper, got there some 40 minutes after the automobile overturned and found the defendant coming out of a house where he had gone after the wreck and which belonged to the only other passenger in the automobile who had not been killed. At...