Carbo v. State, 4 Ga. App. 583

4 Ga. App. 583 | Ga. Ct. App. | 1908

Russell, J.

1. There can be no conviction of the offense of involuntary manslaughter, either in the commission of an unlawful act, or in the commission of a lawful act without due caution and circumspection, where the homicide is directly due to an independent intervening cause in which the accused did not participate and which he could not foresee.

2. To constitute a crime there must be either the joint operation of act and intention, or criminal negligence. Criminal negligence necessarily implies, not only knowledge of probable consequences which may result from the use of a given instrumentality, but also wilful or wanton disregard of the probable effects of such instrumentality upon others likely to he affected thereby.

3. Consequently, criminal negligence is not shown as against a defendant who uses every means in his power for the safety of those whom it is alleged his negligence has affected.

4. One who has an object of danger or a dangerous instrument of any kind upon his premises owes no duty with reference to the safety of others, except as to those likely to be affected thereby. And upon his trial for crime, it must appear that the injury to those affected by such' dangerous instrument was due to such negligence on his part.

One who, with full knowledge of a danger of which he has been warned, encounters such danger himself, assumes all risks; and a resulting injury can not be made chargeable to another, where it appears that the injured person; being of sound mind and of the age of discretion, by the exercise of ordinary diligence could have avoided the injury.

6. Before one can be held criminally liable for the result of negligence, it must be shown, beyond reasonable doubt, that the result, though caused by the accused unintentionally, injuriously affected one who, but for his ignorance of the danger, might have escaped harmless. There can be no conviction .where it appears that the person injured was apprised of the danger, and unnecessarily, and over the protest of the defendant, exposed himself thereto. . Judgment reversed.

Carbo, having been found guilty, moved for a new trial on the grounds, among others, that the verdict was contrary to law and evidence. In an opinion filed by the trial judge with his order overruling the motion, the following authorities were cited: 7 Ga. 13; 31 Ga. 185; 89 Ky. 287; 2 Colo. L. Eep. 78; 103 N Y. 4-87, 57 Am. E. 766; 56 Barb. 72; 1 Johns. (N. Y.) 78, 3 Am. D. 296; 24 N. Y. Week. Dig. 828; 9 Crim. L. Mag. 155; 6 B. Mon. 174; 11 Humph. 159; 4 Mason, 505; 10 S. E. 838; 32 Am. E. 408; 19 Fed. 633; 67 Fed. 426; 67 N. W. 1020; 101 Ga. 407; 128 Ga. 561, and cit.; 45 L. E. A. 783; 3 C. & K. 123; 4 Cox C. C. 449; 116 Ga. -152; 80 Ga. 114; 2 Pa. L. J. E. 467; 114 Ga. 30; 2 Bish. New Or. L. 424, 636, 637, 756, 579, 689, 635; 1 Whart. Cr. L. §152; 9 Colo. 544, 13 Pac. 696, 4 S. W. 409; 56 N. W. 79; 3 Am. D. 299; 34 N. W. 319; Whart. Horn. §374; 70 Ala. 33; 84 N. W. 520; 72 Ga. 167; 110 Ga. 748; Meigs, 106; 21 Cyc. 766.

Twiggs, Oliver, Gazan & Oliver, for plaintiff in error. W. W. Osborne, solicitor-general, contra.