Weaver v. State , 67 Ga. App. 692 ( 1942 )

Gardner, J.

With reference to the general grounds, the evidence was sufficient to sustain the verdict.

The special grounds are directed to the court’s charge with reference to misfortune and accident contained in Code § 26-404: “A person shall not be found guilty' of any crime or misdemeanor committed by misfortune or accident, and where it satisfactorily appears there was no evil design, or intention, or culpable neglect.” The assignments of error are as follows: (1) The court erred in giving the following charge “Now, if the jury believe beyond a reasonable doubt that - the defendant in the manner in which he was operating the automobile and that there was no evil design or intention and no culpable neglect on the part of the defendant, but that this collision or this wreck as charged in the indictment was an accident unmixed with any evil design or any culpable neglect on the part of the defendant, you would not be authorized to convict him of any offense, and in that event the form of your verdict would be: ‘We, the jury, find the defendant not guilty’.” (2) The court erred in giving the following charge: “Now, gentlemen, you take this ease. I charge you now if you find that the death of the party named in this indictment resulted from misfortune or from accident and that this defendant was free of neglect, why then, gentlemen, you couldn’t convict him of any offense, the offense would not be unlawful, and it would be your duty to give him the benefit of that doubt and acquit him.” (3) The court erred in the following charge: “In other words, gentlemen, if the jury believe from the evidence beyond a reasonable doubt the defendant killed the deceased in the manner alleged in the indictment, in order to avail the defendant of the defense of accident under this indictment it must appear to your satisfaction that there was no evil design—no evil intention—and no culpable neglect on his part. Neglect, gentlemen, is the absence of proper care or neglect in the absence of doing anything in proper way or a reasonable way.” (4) That the court erred in giving the following charge: “On the other hand, gentlemen, if you find that this was an accident, as I have defined an accident to be, where the defendant was not negligent, why then, gentlemen of the jury, you could not convict the defendant of any offense,”

Taking the excerpts of the charge together, the vice alleged is twofold: First, in effect, the court instructed the jury that they must believe it was an accident beyond a reasonable doubt before they could be authorized to convict the defendant. If accident and misfortune was an issue under the record, this assignment is meritorious and would demand a reversal under the principle laid down in Dorsey v. State, 110 Ga. 331, 332 (35 S. E. 651); McDonald y. State, 12 Ga. App. 526 (77 S. E. 655); Lowry v. State, 6 Ga. App. 541 (65 S. E. 353); Nixon v. State, 14 Ga. App. 261, 263 (80 S. E. 515). Under the principle announced in those decisions this charge places on the defendant a burden which the law does not require. If the jury, under the whole evidence and the defendant’s statement, had a reasonable doubt as to whether the collision was an accident they should give the defendant the benefit of the doubt and acquit him. Second, that in the excerpts of the charge of which complaint is made the court failed to instruct the jury that culpable negligence or criminal negligence is different in degree from ordinary negligence, and, moreover, that the court instructed the jury that before they would be authorized to acquit the defendant it would be necessary for them to believe that the defendant was free from any degree of negligence. If accident was an issue in the ease, which we will discuss hereinafter, the charge was manifestly error under the principle announced by this court in Dunahoo v. State, 46 Ga. App. 310, 313 (167 S. E. 614).

This brings us to the point of determining whether these portions of the charge, though erroneous, were prejudicial and harmful to the defendant to such a degree as to demand a reversal. If the record was sufficient to sustain the contention that the collision was an accident, or if the record raised a reasonable doubt as to whether it was an accident, the court should have charged the law pertaining to misfortune and accident.. If the evidence and the defendant’s statement, beyond peradventure, revealed that there was no viewpoint from which the collision could be considered an accident, then this court must look to see whether the erroneous charge was confusing to the jury and prejudicial to the defendant, resulting in harm, and requiring a reversal. It will be noted in the Dunahoo case, supra, that this court stated: “By his statement, the defendant directly injected into the case the theory of 'accident.’ ” We have examined the original record of the Dunahoo case as filed in the clerk’s office and find that accident was directly involved in that case. Along with that record and the record in the instant case we have carefully searched with a view of ascertaining whether the theory of accident was sustained by either the evidence or the defendant’s statement. We have confidently reached the conclusion that the theory of accident was not involved from any viewpoint in the instant case. The evidence did not raise such a theory, and the statement of the defendant excluded and negated it. The court charged the law correctly and fully with reference to voluntary manslaughter both in the commission of an unlawful act and a lawful act without due caution and circumspection. The evidence was sufficient to sustain a verdict of either grade of involuntary manslaughter, but the theory of accident was not involved under this record, and we fail to see how the jury could have been confused or prejudiced to the harm of the defendant because of the erroneous charge and the inapplicable charge on the law involving accident when it was not an issue in the case.

The appellate courts have so held on a number of occasions. See Rentz v. Collins, 51 Ga. App. 782 (2) (181 S. E. 678), and cit. In Ward v. State, 184 Ga. 566 (2) (191 S. E. 916), the court held: “The evidence in behalf of the State tended to show that the accused murdered the deceased, his stepdaughter, by stomping her with his feet. The only defense set up by the accused was that he did not stomp her; that his wife told him she was run into by an automobile. In such circumstances the instruction on the law of self-defense, by reading to the jury Code, § 26-1011, if not applicable to. any theory of the .case, was not harmful to the accused, and therefore was not cause for a new trial. See Green v. State, 153 Ga. 215 (4) (111 S. E. 916); Tate v. State, 46 Ga. 148; Cato v. State, 72 Ga. 747 (3). Compare Garland v. State, 124 Ga. 832 (2), 834 (53 S. E. 314); Floyd v. State, 182 Ga. 549 (2) (186 S. E. 556).” In Geer v. State, 184 Ga. 805 (193 S. E. 776), the court held: “In such circumstances the instruction to the jury on the law of justifiable homicide, if not applicable to any theory of the case, was not harmful to the defendant, and therefore was not cause for a new trial.” In Green v. State, 153 Ga. 215 (supra), it was held: “’The evidence on behalf of the State tended to show that the accused murdered the deceased while in his room at night, by striking him on the head with an ax. The only defense set up by the accused was alibi. In such circumstances the instruction to the jury as to the law of self-defense and reasonable fears, if not applicable to any theory of the case, was not harmful to the accused, and was not therefore cause for a new trial.” Again, in Lazenby v. Citizens Bank, 20 Ga. App. 53 (92 S. E. 391), this court held: “The charge of the court having, as a whole, properly submitted to the jury the controlling issues involved, under correct principles of law, the inaccuracy and immateriality which might exist in the portions excepted to can not work a reversal, where it appears that the jury could not reasonably have been misled thereby.” See also Commercial Bank of Jasper v. Dasher, 24 Ga. App. 736 (102 S. E. 177); Long v. Gilbert, 133 Ga. 691 (5) (66 S. E. 894), the latter reading as follows: “An irrelevant charge will not cause a new trial, where it does not prejudice any right of the parties and is not likely to mislead the jury from the true issues of the case.”

We find no error to warrant a reversal.

Judgment affirmed.

Broyles, C. J., and MacIntyre, J., concur.