Webb v. State , 68 Ga. App. 466 ( 1942 )

The evidence supported the verdict, and none of the special grounds of the motion for new trial discloses reversible error. The court did not err in overruling the motion.

DECIDED DECEMBER 4, 1942. The defendant was indicted on three counts of murder and two counts of assault with intent to murder, arising from an automobile accident in which three persons were killed and two persons were injured. He was found guilty of involuntary manslaughter in the commission of an unlawful act under the first three counts, which involved the deaths of the victims, and was sentenced to one year under each, the sentences to be cumulative. He was found guilty of assault and battery under counts 4 and 5, and was given a sentence of twelve months under each, the sentences to run concurrently and to be served at the expiration of the sentence under count 3. The defendant's motion for new trial was overruled, and he excepted.

1. The evidence authorized the verdict.

2. The judge charged the jury in part as follows: "Each count in this indictment presents a separate and distinct charge by the State against the defendant. You will consider and determine the defendant's guilt or innocence upon each count in this indictment; and as the court has said, each count contains a separate and distinct charge against the defendant and it will be your duty to consider each and every count in this indictment separately and to return a verdict as to each and every count in this indictment, unless, gentlemen, you should find the defendant not guilty under the law which the court will hereafter give you in charge, in which event you may return one general verdict of not guilty, in the form which the court will hereafter give you." On this excerpt the defendant assigns error because: "(a) Said charge was erroneous as a matter of law, because under the indictment and the evidence the three persons alleged to have been killed in counts 1, 2, and 3 of the indictment, and the two persons alleged to have been assaulted in counts 4 and 5 of the indictment, were riding in an automobile together, and were struck by an automobile driven by the defendant, at one and the same time, at one and the same place, and all being one and the same transaction, and being the result of one single stroke, which under the law could have amounted to only one offense against the State, but which were treated by the court under said charge as being separate and distinct charges, amounting to separate and distinct offenses, authorizing separate and distinct verdicts, carrying separate and distinct penalties upon each. (b) Said charge was confusing and misleading to the jury because it tended to, and probably did cause the jury to believe that they were authorized and required to consider each count with a view of acquitting the defendant on all counts, acquitting him on some of them, or convicting him on all counts, or on some of them, and to treat each of the counts as separate and distinct trespasses against the individual persons alleged to have been killed in counts 1, 2, and 3, and the persons alleged to have been assaulted in counts 4 and 5 of the indictment. (c) Said charge was further confusing and misleading to the jury because nowhere in the entire charge did the court ever explain to the jury that if under the evidence they found as a matter of fact that the persons alleged to have been killed in counts 1, 2, and 3, and the persons alleged to have been assaulted in counts 4 and 5 of the indictment, were the victims of one and the same stroke, at the same time and place, and all the same transaction, there could be but one offense against the State."

There was no demurrer to the indictment, and under the ruling in Webb v. State, 177 Ga. 414 (170 S.E. 252), s. c.47 Ga. App. 505 (170 S.E. 827), it seems that it would have availed the defendant nothing to have demurred to the same. "In the case of Gilbert v. State, 65 Ga. 449, it is said: ``If two distinct offenses are charged in the same indictment, and no exception is taken thereto by demurrer, the defendant may, nevertheless, demand that the State elect on which it will proceed. If the indictment shows the difference in the charges, the election may be made when it is read; if the difference appears from the evidence, the election may then be made; but it must be called for before the defendant opens his case.'" Webb v. State, 47 Ga. App. 505, supra. The defendant did not demand that the State elect on which count or counts it would proceed, and there is nothing in the record to show that the State's failure to elect in any way confounded the defendant in his defense, or in any way impeded him in his challenge to the jury. See also Martin v. State, 55 Ga. App. 166 (189 S.E. 624). The defendant bases his contention on Dean v. State, 9 Ga. App. 571 (71 S.E. 932), in which several articles which were owned by different owners were stolen at the same time and place, and in which it was held that there was but one larceny, the court quoting as follows: "In principle the wrong as a crime is to the public, not to the private owner. The thief ordinarily does not care, and often he does not know, whose are the things he is taking. . . Still, where many articles are stolen at one time, there is only one theft, whether the ownership is in one person or many." This principle is well founded and is sustained by many competent authorities as to cases where there is a larceny committed at one time of articles owned by different people. The underlying theory for this seems to be that the thiefintended to commit but one larceny. Being unable to find any Georgia cases in point with the instant case, we think the reasoning in State v. Laughlin, 180 Mo. 342 (79 S.W. 401), is well founded. In that case the defendant, a public official, was indicted separately for embezzlement of two trust funds, though the embezzlement in both instances was committed by one act of conversion. It was held that the single act constituted two separate and distinct offenses in that the two different trusts were violated. In such a case the defendant, as a trust officer, had reason to know that he was violating two separate trusts.

In the instant case, in the commission of an unlawful act the defendant drove his automobile into another automobile causing a wreck in which three persons were killed and two were injured, and he was convicted under three counts of involuntary manslaughter in the commission of an unlawful act, and two counts of assault and battery. "A reckless disregard of human life may be the equivalent of a specific intent to kill. . . The presumption of malice may arise from a reckless disregard of human life." Dennard v. State, 14 Ga. App. 485, 488 (81 S.E. 378). "Assault and battery may be committed by striking another with an automobile intentionally, or by driving the machine so recklessly as to justify a jury in finding that there was a reckless disregard of human life and safety." Tift v.State, 17 Ga. App. 663 (88 S.E. 41). See also Looney v.State, 41 Ga. App. 495 (2) (153 S.E. 372); Gallery v.State, 92 Ga. 463 (17 S.E. 863). Thus it is shown that a specific intent or a presumption of malice may arise from a reckless disregard of human life. "The crime charged in this case comes under that class of criminal cases in which proof that the defendant intended to do the prohibited act is all that is necessary, for ignorance of the law is no excuse. If the accused did the act, the law presumes he knew it was criminal, and that he knew the natural and necessary consequences that would result." Cornell v. State, 64 Ga. App. 202, 206 (12 S.E.2d, 378). "Every person is presumed to intend the natural and necessary consequence of his acts." Tift v. State, supra.

It is well to consider that a person driving along a public highway can be presumed to know that he will meet and pass other vehicles which are lawfully using the highway, and that these vehicles may carry one or many persons. There may be an automobile in which there is only the driver, while on the other hand there may be a bus in which twenty or more persons are riding. In presuming that a person "knew the natural and necessary consequences that would result," we think it follows that the defendant in the instant case can be presumed to have known that he would collide with an automobile in which five persons were riding, and that each might be affected by his unlawful act as a natural and necessary consequence. We see no reason why the presumption of knowledge of the exact consequences can not be imputed to the defendant as well as the presumption of malice and intent. By his unlawful act he placed himself in the position of impliedly intending to commit the crime, and, as he "knew the natural and necessary consequences that would result," it follows that he intended (by implication) to drive the automobile into the other car, and that he had knowledge (by implication) that the other carried five persons, three of whom would be killed and two injured by his unlawful act. In looking past the act to the result we think this was not a situation where the intent was single, as in the case of a thief who at one time stole several articles owned by different persons, but it was a situation where the intent was several, as in the case of the public official who, by one act of conversion, committed separate and distinct offenses by the embezzlement of two separate trusts. We think the defendant was accountable for every offense charged in the indictment, and that the court did not err in overruling the motion for new trial.

Judgment affirmed. Broyles, C. J., concurs.