Powell v. State , 193 Ga. 398 ( 1942 )

1. If an involuntary homicide shall happen in the commission of an unlawful act such as in its consequences naturally tends to destroy the life of a human being, the offense may be adjudged to be murder.

2. The term "highway" or "public highway" as used in the statutes regulating the operation of motor vehicles is not confined to roads forming a part of the State highway system, but covers all public roads in the State.

3. The defendant's conviction was not dependent solely upon circumstantial evidence; and in the absence of a proper request, the court's failure to instruct the jury on the law of circumstantial evidence was not error.

4. The verdict of the jury was authorized.

No. 13881. JANUARY 15, 1942. REHEARING DENIED FEBRUARY 12, 1942. Herman, alias Buddy, Powell was convicted of murder, and sentenced to life imprisonment. His motion for new trial was overruled, and he excepted. The indictment charged that the defendant killed Mrs. Lillian Cox by running into and against her with an automobile. The proof shows that an automobile driven by the defendant collided with another in which the decedent was riding, and which was being driven by her daughter; that the cars were meeting; that the decedent's car was on its right side of the road, and almost ran into the ditch just before the collision, because the driver was seeking to "dodge" the approaching car of the defendant and the ditch; that the defendant's car "was coming kindly cross the road;" and that the driver of the decedent's car "was on the right side of the road" and the defendant "ran into our car." The physical facts testified to by a witness who visited the place shortly after the collision strongly corroborated the testimony of the driver of the decedent's car. Testimony offered by the State, but disputed by the defendant, indicated that the defendant was under the influence of liquor. The collision happened about 7:30 p. m., March 16, 1941, on the "Bee-Line Highway" about a half-mile west of Wrightsville, which is about the standard width of a State highway. 1. Ordinarily to kill a human being without any intention to do so is involuntary manslaughter, which may be a crime if done in the commission of an unlawful act, or if done in the commission of a lawful act, but without due caution and circumspection; but "where such involuntary killing shall happen in the commission of an unlawful act which, in its consequences, naturally tends to destroy the life of a human being, . . the offense shall be deemed and adjudged to be murder." Code § 26-1009. Whether such an unlawful act is one that naturally tends to destroy a human life is a question of fact to be determined by a jury. Thus, while an automobile is not per se a deadly weapon, it may be so operated as to destroy human life; and if the driver of an automobile operates it in violation of the law, and the unlawful manner of operation is such as the jury may find naturally tends to destroy human life, a homicide resulting from such operation may be adjudged to be murder. Butler v. State,178 Ga. 700 (173 S.E. 856); Jones v. State, 185 Ga. 68 (194 S.E. 216); Meadows v. State, 186 Ga. 592 (199 S.E. 133).

2, 3. The only special ground of the motion for new trial assigns error upon the failure of the judge to charge the jury upon the law of circumstantial evidence. It is contended, not that there was a request so to charge, but that the conviction depended entirely upon circumstantial evidence, and for this reason such an instruction was required. The contention is that the various statutes which the State sought to prove had been violated by the defendant relate to the operation of motor vehicles on public highways; that the evidence as to the nature and character of the road along which both parties were traveling was wholly circumstantial, and the defendant's conviction was consequently wholly dependent upon circumstantial evidence. It is strongly urged that the proof as to the intoxicated condition of the defendant was entirely circumstantial; and that even if there had been direct evidence of drunkenness, there was no direct evidence that the defendant operated his automobile upon a public highway while intoxicated or under the influence of intoxicants. The statutes regulating the operation of motor vehicles variously refer to the "highways" and the "public highways" of the State. A highway is a public road, and the terms "highways" and "public highways" as used in these statutes mean "public roads" as distinguished from private ways. The meaning is not confined to the public highways which form the State highway system. Southern Ry. Co. v. Combs, 124 Ga. 1004 (53 S.E. 508); Schlesinger v. Atlanta, 161 Ga. 148,159 (129 S.E. 861). While there was no direct evidence that the collision which resulted in the death of the decedent occurred on a State highway, unless we should take judicial notice that the Bee-Line Highway is a part of the State system, there was direct and positive evidence that the collision took place on a highway. There was also direct proof that the defendant was driving without lights, and that he drove his car on the wrong side of the road and into the car of the decedent, in violation of the Code, § 68-303. It is strongly contended by able counsel for the defendant that there was no direct evidence that the collision occurred at night. The driver of the decedent's car testified that the collision took place about 7:30 p. m. on March 16, 1941, and that it was getting dark. Whether or not this proof directly established that the collision occurred at night, and whether or not we should judicially know that it was dark in Johnson County, Georgia, at 7:30 p. m. Eastern Standard Time, on March 16, 1941, the court does take judicial notice of the time of the setting of the sun; and that at the time of the collision here involved, it was more than a half-hour after sunset. Accordingly, the defendant was required by the act of 1939 (Ga. L. 1939, pp. 295, 303) to have his car lighted. In view of the direct proof of illegal operation of the automobile by the defendant, and the direct and undisputed evidence that he actually drove the car which collided with that of the decedent, it can not be said that the conviction was dependent solely upon circumstantial evidence, or that the court's failure to charge on the law of circumstantial evidence without a request was error.

4. The evidence fully authorized the jury to find that the defendant was operating his car along a public highway in violation of the statutes referred to in the foregoing division of the opinion, and that he was in a drunken condition as he did so. The verdict can not be set aside on the general grounds of the motion for a new trial.

Judgment affirmed. All the Justices concur except Atkinson,P. J., who dissents.