Wright v. State ( 1928 )

Atkinson, >J.

The first count in the indictment charged Tom Wright “with the offense of murder,” for that he, “with force and arms, did unlawfully, wrongfully, and with malice aforethought, kill and murder” Algernon Baker Jr., “by then and there running a certain Ford touring-car automobile then and there driven and operated by him,” the defendant, “against and onto the said” Baker, “and thereby inflicting upon the said” Baker “a mortal wound, from which said wound the said” Baker “then and there died; contrary to the laws of the State, the good order, peace, and dignity thereof.” There was a demurrer to this count, upon the following grounds: (1) It is not alleged that the homicide was intentional or willful. (3) There being no allegation that the homicide was with a weapon likely to produce death, the charge that the homicide was with “malice aforethought” was not the equivalent of or sufficient to charge “that the homicide was intentional.” (3) The indictment does not charge reckless conduct; and no “intention” to commit a crime being alleged, the indictment was insufficient to charge the offense of murder. (4) All the allegations are “consistent with accidental killing.” (5) It is not alleged that the car “was a weapon likely to produce death, or used in a manner likely to produce death, or that it was driven in an illegal manner, or to or in a place where such driving or running would likely produce death.” (6) No intention to kill will be presumed where the instrument used in the killing is not an instrument likely to produce death, nor used in a manner likely to produce death. (7) Every allegation in the indictment might be true and the defendant not be guilty of murder.

It being alleged that death resulted from a wound produced by the defendant by running the automobile “against and onto” the person slain, and that the said acts of the defendant were unlawful and “with malice aforethought,” this count of the indictment was sufficient as against all of the several grounds of demurrer. The allegation that the homicide was committed by-the defendant “unlawfully” and with “malice aforethought,” by running the automobile “against and onto” the person slain, was the equivalent of an allegation that the automobile was intentionally run “against and onto” the person slain, because the words above quoted necessarily imply intent to commit the alleged unlawful act of killing. A necessary allegation in an indictment for murder, though not expressed in the technical terms, may be expressed by any words which are the legal equivalent of the technical term generally employed for such purpose. Gates v. State, 95 Ga. 340 (22 S. E. 836).

The second count charged Tom Wright “with the offense of murder,” for that he, “with force and arms, did wrongfully, unlawfully, and involuntarily, and while in the commission of an unlawful act, to wit, while driving and operating himself a certain Ford touring-car automobile along, upon, and over a certain highway of said county known as the highway from Warrenton, Ga., to Jewell, Ga., and on said highway near the home of A. Baker, at a rate of speed greater than forty miles per hour, to wit, at fifty miles per hour, and a time when the said Tom Wright was approaching and going around a certain sharp curve in said highway and while meeting a wagon in said highway, said act of the said Tom Wright being then and there an-act which “in its con-, sequences naturally tended to destroy the life” of Algernon Baker, Jr., an infant of three years, who was at said time standing upon the extreme outer edge of said highway on the west side thereof, and in clear view of the said Tom Wright, and he, the said Tom Wright, did then and there, and in the manner and under the circumstances aforesaid, run, drive, and operate the said Ford touring-car automobile onto and against the said Algernon Baker Jr., a human being in the peace of said State then and there being, thereby inflicting upon the said Algernon Baker Jr. a mortal wound, from which said wound the said Algernon Baker Jr. then and there died; contrary to the laws of said State, the good order, peace, and dignity thereof.”

It is declared in the Penal Code, § 67: “Involuntary manslaughter shall consist in the killing of a human being without any intention to do so, but in the commission of an unlawful act, or a lawful act, which probably might produce such a consequence, in an unlawful manner: Provided, that 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, or is committed in the prosecution of a riotous intent, or of a crime punishable by death or confinement in the penitentiary, the offense shall be deemed and adjudged to be murder.” The proviso in this section must be considered in connection with section 60 of the Penal Code, which defines murder as “the unlawful killing of a human being, in the peace of the State, by a person of sound memory and discretion, with malice aforethought, either express or implied.” There can be no murder without malice express or implied. If an indictment does not allege malice in express terms, it must do so by employment of equivalent words. Gates v. State, supra.. The proviso in section 67 is founded on the principle of implied malice, and does not dispense with necessity of expressly alleging implied malice or its equivalent in an indictment for murder. If it did so, it would conflict with section 60; and it should not be so construed. The proviso in section 67 does not name specific acts that would bring a case within its provisions. The second count in the indictment does not expressly allege implied malice. Whether it alleges the equivalent of implied malice depends upon the language employed. To be sufficient for that purpose the alleged acts of the defendant should be done “so carelessly and recklessly that the law would imply an actual intention to kill from the mere wantonnéss of the act, and death resulted.” Pool v. State, 87 Ga. 526 (8) (13 S. E. 556). The allegation in the second count that the specific acts in their “consequences naturally tended to destroy the life” of the child is no broader than the specific facts alleged. These were insufficient to imply malice. The second eount of the indictment was sufficient as a charge of involuntary manslaughter in the commission of an unlawful act, but it was not sufficient as a charge of murder. It was an unnecessary count to charge involuntary manslaughter, because that offense was included in the first count.

“Intentionally to point a pistol at another, in fun or otherwise, save in the instances excepted by the statute, is unlawful; and if, while performing such unlawful act, the pistol is accidentally discharged, the person so acting, if not guilty of murder, would be guilty of involuntary manslaughter.” Leonard v. State, 133 Ga. 435 (5) (66 S. E. 251). Though conflicting, there was evidence in this case tending to show that the automobile was driven at a rate of speed of 15 to 20 miles per hour. This evidence would have authorized a finding that the automobile was being lawfully operated, and that the homicide was committed by a lawful operation of the automobile without the exercise of due caution and circumspection. In this view it was erroneous for the judge to omit to charge the law of involuntary manslaughter in the commission of a lawful act done in an unlawful manner.

Where the court gives in charge to the jury § 67 of the Penal Code, if the defendant desires more elaborate instructions as to the distinction “between an act which in its consequences naturally tends to destroy human life, and an act which in its consequences does not tend to destroy human life,” there should be an appropriate written request stating the charge that it is desired the court should give.

As the judgment refusing a new trial will be reversed, it is unnecessary to deal with those grounds of the motion for new trial which complain that the verdict did not state upon which count it was based, and which relate to refusal of the judge toycontinue or postpone the case, and to his allowing the attorneys appointed by the court to represent the defendant to withdraw from the case.

Judgment reversed.

All the Justices concur, except Hines, J., who dissents.