Wellons v. State , 77 Ga. App. 652 ( 1948 )

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 provision as it relates to former jeopardy.

DECIDED JULY 16, 1948. REHEARING DENIED JULY 31, 1948. Fred Wellons was convicted at the March term of Peach Superior Court of assault and battery. The evidence relied on by the State reveals that on September 6, 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. Johnston 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 autrefois 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 of involuntary manslaughter in the commission of an unlawful act, and was sentenced to a term of years in the penitentiary. The plea of autrefois convict of the defendant in the killing of Lonnie Bellflowers was alleged to be on the same occasion as the one 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 autrefois 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 with 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 an 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 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 were 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 contradicted this contention of the defendant to the effect that there was no car approaching.

The indictment on which the defendant was convicted of 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 autrefois convict. 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 autrefois convict under the provisions of the Constitution. Code, § 2-108. The only decision in this State almost identical to the question now before us 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 unlawful killing of Bellflowers can not subsequently be 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 presented for determination, is does the killing of Bellflowers and the beating of Johnston involve the same offense within the purview of the Constitution of Georgia? The contention of the State is that it does not. The contention of the defendant is that it does. The State contends that the majority opinion in the case of Webb v. State, supra, is sound and controlling and should be adhered to. The contentions of counsel for the defendant are that the correct principle which should govern this case is set forth in the dissenting opinion in that case and that the ruling in the Webb case should be overruled, and the dissenting opinion made to prevail in the instant case. The State relies on the decisions cited in the majority opinion in the Webb case; the defendant on the decisions cited in the dissenting opinion, and other decisions, including Roberts v. State, 14 Ga. 8 (58 Am. D. 528);Copenhaven v. State, 15 Ga. 264; State v. Crosgrove,103 N.J.L. 412 (135 A. 871); Smith v. State, 159 Tenn. 674 (21 S.W.2d 400). The defendant also relies on and cites the following authorities: Gully v. State, 116 Ga. 527 (42 S.E. 79); Holt v. State, 38 Ga. 187; Jones v. State,55 Ga. 625; Buhler v. State, 64 Ga. 504; Goode v. State,70 Ga. 752; Knight v. State, 73 Ga. 804; Knox v.State, 89 Ga. 259 (15 S.E. 308); Smith v. State,200 Ga. 188 (36 S.E.2d 350). It is contended that all of these cases either lay down or apply the principle that, where the second case is the same transaction as the first, the plea of autrefois convict should be sustained. Our attention is particularly called to Hines v. State, 41 Ga. App. 294 (152 S.E. 616), to the effect that it is former jeopardy if the offense in the second indictment was or could have been made the subject of investigation under the first indictment. The State on the other hand contends and, we think correctly so, that all the cases cited from this State by counsel for the defendant involve only one victim, and not several, and that it was a question in those cases of election by the State as to what offense would be chosen as the basis of the indictment. And the State further contends that the following excerpt from the majority opinion inWebb v. State, supra, enunciates the true principle of law which obtains in this State and in the great majority of jurisdictions: "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." The instant case was assigned to the writer, who wrote the dissenting opinion in the case of Webb v. State. Since that time we have had occasion to study this question further, particularly in the case of Martin v. State, 77 Ga. App. 297 (48 S. E 2d, 485). In doing so, we have come to the conclusion that the majority opinion in the case of Webb v.State, supra, is perhaps a sounder and a more beneficial rule insofar as the public interest is concerned, and that at the same time the majority opinion does not do violence to any constitutional right of a defendant prohibiting his being tried a second time for the same offense. The writer's conviction and change in this respect has been largely influenced by a study of the question since the Webb case, and particularly a study and analyzation of the case of Harris v. State, 193 Ga. 109 (17 S.E.2d, 573, 147 A.L.R. 980).

Judgment affirmed. MacIntyre, P.J., and Townsend, J.,concur.