22 S.E.2d 529 | Ga. Ct. App. | 1942
1. Where the grand jury list had on it the names R. P. Austin, H. R. Kennedy, and J. W. Carrington Jr., and the indictment had on it the names R. P. Auston, H. R. Kanady, and J. W. Carrington, the indictment should not have been quashed on plea in abatement where the evidence on this plea left no doubt of the identity of the persons. Any slight mistake in the names was immaterial.
2. In the light of the facts the plea in abatement was bad. The question was one of identity of persons, not of names. The presumption is that the grand jury was properly constituted, and the defendant must show that it was not. So far from the presumption being overcome, it was established by the evidence on the plea in abatement, beyond a doubt, that the persons in question whose names so nearly corresponded, and who found the bill of indictment against the defendant, were the same persons who had their names in the grand jury box and on the list of grand jurors of the county.
3. The demurrer alleged facts which were not set forth in the indictment which it sought to attack. It thereby became speaking in character, and was properly overruled. Arthur v. State,
4. "There can be no murder without malice express or implied."
5. Code § 26-1009 provides: "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. . . the offense shall be deemed and adjudged to be murder." This section as it relates to murder is founded on the principle of implied malice. *180
6. An indictment seeking to allege the offense of murder as defined in Code § 26-1009, which alleges there was no intention to kill, and yet alleges that the involuntary killing happened "in the commission of an unlawful act which, in its consequences, naturally tends to destroy the life of a human being," and in so alleging employs language which alleges the equivalent of implied malice, does not subject the indictment to the demurrer "that while said indictment undertakes to charge the offense with murder against J. H. Cole and alleges malice in the commission of a homicide, it distinctly expresses negative matters by alleging that the said J. H. Cole had no intention of killing."
1. The defendant filed a demurrer and a plea in abatement, both of which sought to attack the indictment on the ground that "certain persons who found the bill against the defendant were not persons who had their names in the grand jury box and on the list of the grand jurors of this county, namely, J. W. Carrington, H. R. Raniday, and R. P. Auston, and without their names there were only 17 grand jurors who returned the indictment." We will consider these questions in inverse order. We will first consider the plea in abatement. The evidence on the trial of the plea showed that the names, R. P. Austin, H. R. Kennedy, and J. W. Carrington Jr., inscribed on the indictment, were misspelled; that is, the clerk of the grand jury misspelled the name "Austin" and wrote it "Auston;" that he mispelled "Kennedy" and spelled it "Canady," and then wrote "K" over the "C" so that to some it might look like an "R;" and that the clerk of said grand jury did not add "Jr." after the name of J. W. Carrington. The presumption is that the grand jury was legally constituted. Where, as here, the names so nearly corresponded, and the evidence showed that the persons who actually served as grand jurors were the individuals designated by the jury commissioners as grand jurors, and were registered on the list as competent to serve, the mere wrong spelling of the names *181
by the clerk of the grand jury as above indicated, which were slight inaccuracies, should be passed by as immaterial. "The important question is, did the men chosen as grand jurors act and find the bill true? Are those who found the charge true identical with those who were drawn to pass upon the charge? The question is not so much idem sonans as it is idem persona." Reich v.State,
Under the uncontradicted evidence in the instant case the mere fact that the names of the grand jurors were misspelled does not render the direction of the verdict against the plea in abatement erroneous when it appears that the misspelling of the names was immaterial, and that, giving to the opposite party the benefit of the most favorable view of the evidence as a whole and all the legitimate inferences therefrom, the verdict against him is demanded. Eason v. Joy Floral Co.,
2. The judge overruled the demurrer on the ground that it was a speaking demurrer. "A speaking demurrer is one which alleges some new matter, not disclosed by the pleading [indictment] against which the demurrer is aimed and not judicially known or legally presumed to be true. Such a demurrer presents no question for decision, and should never be sustained." Miller v.Southern Ry. Co.,
3. The indictment alleged that the killing was done with malice aforethought, subsequently alleged specific unlawful acts, and then further alleged, "and, while so doing, as a natural consequence of the unlawful acts, the accused J. H. Cole, without any intention to do so, killed and murdered one Mrs. H. L. Hudson, a human being, so that as a result of said unlawful, wanton and reckless operation of said automobile by J. H. Cole, said automobile driven and operated by J. H. Cole, being a weapon likely to produce death, was then and there driven by accused into, upon and against the automobile in which the said Mrs. H. L. Hudson was riding as aforesaid, thereby killing and murdering the said Mrs. H. L. Hudson." It was not subject to the demurrer "that while said indictment undertakes to charge the offense with murder against J. H. Cole and alleges malice in the commission of a homicide, it distinctly expresses negative matters by alleging that the said J. H. Cole had no intention of killing the person alleged to have been killed by him. The said indictment reading, `Without any intention to do so killed and murdered one Mrs. H. L. Hudson.'" The Code, § 26-1002, provides: "Murder is 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." In Jones v. State,
The verdict of involuntary manslaughter in the commission of an unlawful act was authorized by the evidence.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.
