11 Ga. App. 371 | Ga. Ct. App. | 1912
(After stating the foregoing facts.)
1. In this State involuntary manslaughter is thus defined: “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 óf 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.” Punishment for involuntary manslaughter in the commission of an unlawful act is from one to three years in the penitentiary, and involuntary manslaughter in the commission or performance of a lawful act, where there has not been observed necessary discretion and caution, is punished as for a misdemeanor. Penal Code (1910), §§ 68, 69. At common law manslaughter was defined to be “the unlawful killing of another without malice, either express or implied; which may be either voluntarily, upon a sudden he.at; or involuntarily, but in the commission of some un
2. It is contended that the act of the General Assembly of Georgia regulating the use of automobiles, and the ordinance of the City of Atlanta, both of which it is alleged in the indictment the defendant was violating at the time of the homicide, are so indefinite and uncertain as to be incapable of enforcement. It is the duty of the judicial department, wherever possible, to construe an act of the legislative department so as to make it valid and binding and give due effect to all of its terms. Hence, a statute ought not to be held void for uncertainty if it is possible to give a reasonably particular construction to its terms, so as to make them capable of enforcement. But while this is true, the State can not make an act penal without defining the act in terms sufficiently clear for any person to understand that in performing the act he is guilty of a violation of the statute. The maxim that “ignorance of the law is no excuse for crime” is founded upon the theory that the citizen
The foregoing proposition is supported by the authorities with practical unanimity. Reference to a few of the adjudicated cases will serve to illustrate the application of the rule above stated. In Ex parte Jackson, 45 Ark. 158, it was held that a statute making it a misdemeanor to “commit any act injurious to the public health or public morals, or the perversion or obstruction of public justice, or the due administration of the law,” is void for uncertainty. A statute making it a crime for a railway corporation to charge, collect, or receive more than a just or reasonable rate of toll as a compensation for the transportation of passengers has been held to be unconstitutional. L. & N. R. Co. v. Commonwealth, 99 Ky. 132 (59 Am. St. Rep. 457, 33 L. R. A. 209, 35 S. W. 129). The same rule has been announced with reference to a statute which undertook- to make penal the combining of two or more persons for the purpose of “mob violence,” the statute not undertaking to define or designate what acts should be deemed or considered mob violence. Augustine v. State, 41 Tex. Crim. Rep. 59, 73 (96 Am. St. Rep. 765, 52 S. W. 77). The Supreme Court of the United States has said that “laws which create crime ought to be so explicit that all men subject to their penalties may know what acts it is their duty to avoid. Before a man can be punished, his case must be plainly and unmistakably withiii the statute.” United States v. Brewer, 139 U. S. 278-280 (35 L. ed. 190-193, 11 Sup. Ct. 538). A statute of Indiana undertook to make it unlawful for any person to haul over any of the turnpikes or gravel roads during certain conditions of the weather, on a narrow-tired wagon, a load of more than 2,000 pounds, or on a broad-tired wagon a load of more than 2,500 pounds. This statute was held to be too uncertain
Let these principles be applied to the statute involved in the present case. It must be apparent that so much of section 5 of
3. We do not, however, think that the first count in the indictment was subject to demurrer. It is averred that the' accused was approaching the intersection of two streets; that he did not have his machine under control, and that he was operating the same at a greater rate of speed than six miles per hour, to wit, at a speed of between fifteen and twenty miles per hour. Section 5 of the act of 1910 expressly prohibits the operation of an automobile at a rate of speed greater than six miles per hour upon approaching a “crossing of intersecting highways.” This part of section 5' is certainly sufficiently definite to enable any person coming within the operation of the act to know that it is a violation of the law, and a misdemeanor under the statute, to operate an automobile at such a point on one of the highways of the State at a greater
It is insisted that under a proper construction of section 5 of the act, a greater rate of speed than six miles an hour is unlawful only when approaching a railroad crossing along one of the highways of the State. But we do not think a proper construction of the act limits the section to a railroad crossing. It says, when approaching a “crossing of intersecting highways and railroad crossings.” We construe this to mean that it is unlawful to approach either a crossing of intersecting highways or a railroad crossing upon a highway at a greater rate of speed than that fixed by the act. Since, in the first count of the indictment, it is alleged that the accused approached n crossing where two streets intersected, at a rate of speed between fifteen and twenty miles per hour, it alleged the commission of an unlawful act, in violation of the automobile law of 1910, and was sufficiently definite in its terms.
4. It is quite clear to our minds, however, that the second count in the indictment should have been stricken on demurrer. The provisions of the ordinance of the City of Atlanta, set forth in the indictment, were altogether too uncertain and indefinite to be capable of enforcement. Manifestly it will not do to denounce as a crime the operation of an automobile in a careless and reckless manner without undertaking to define in any way what shall constitute carelessness and recklessness in the manner in which the machine is being operated. The case would vary with circumstances. Sometimes six miles an hour would be a reckless rate of speed. Sometimes fifteen or twenty would not be. A very careful driver might think that ten miles an hour was reckless, and another driver might be of a different opinion. One accustomed to the use of automobiles would think that he could safely employ a certain rate of speed, while one unaccustomed to them would think a very much less rate of speed would be gross recklessness. When put on trial the question of guilt or innocence would depend upon the particular views held by the jury trying the case, or by the judge who presided at the trial. The terms of the ordinance' are entirely too
5. It does not follow, however, that the judgment must be reversed and the conviction set aside. The first count in the indictment was good. The evidence abundantly authorized a finding that at the time of the homicide the accused was driving his machine at a greater rate of speed than that permitted by the automobile act of 1910. There was a general verdict of guilty. There was one good count and one bad count. Each charged the same offense, growing out of the same transaction, and the presumption is that the verdict was founded upon the good count and that the jury disregarded the bad count. Bullock v. State, 10 Ga. 47 (3) (54 Am. Dec. 369); Frain v. State, 40 Ga. 529; 1 Bishop, New Crim. Procedure, § 1015.
6. The further point is made that the charge contained in the first count in the indictment was not sustained, for the reason that the two streets named in the indictment did not cross or intersect each other as alleged in the indictment, but that one of the streets ended at the point where it touched the other. It is contended that this is not a crossing or intersecting of highways, within the meaning of the act of 1910, and does, not support the allegation in the indictment that the homicide occurred at the point where Gordon an'd Holderness streets cross and intersect. We can not assent to this view. On the contrary, we think that the two streets 'did intersect each other, within the meaning and purpose of the law. Manifestly the object of section 5 of the act was to protect persons who might be upon a highway which approached another highway along which an automobile was being driven. There would be just as much reason for holding that one of the streets ended at the farther margin of the other street as there would be in saying that it ended when it touched the first margin of the street. The highway was in a condition to be used by pedestrians and others entirely across the other highway upon which the automobile was being driven. The latter highway extended across the margin of the former highway, and the case is plainly within th spirit and reason of the law.
7. We do not think the indictment was defective because it failed to charge expressly that the homicide was without malice.
8. The presiding judge held that involuntary manslaughter in the commission of an unlawful act was not such a felony as that the court could in its discretion, upon the recommendation of the jury, impose a punishment as for a misdemeanor. Section 1062 of the Penal Code of 1910 provides that “all felonies, except treason, insurrection, murder, manslaughter,” and several other felonies named in the statute, may, upon the recommendation of the jury, in the discretion of the presiding judge, be punished as misdemeanors. The question raised depends upon the construction of the word “manslaughter” in the statute. _ Manslaughter is defined in our code as follows: “Manslaughter is the unlawful killing of a human creature, without malice, either express or implied, and without any mixture of deliberation whatever, which may be voluntary, upon a sudden heat of passion, or involuntary, in the commission of an unlawful act, or a lawful act without due caution and circumspection.” Penal Code (1910), § 64. From this definition it is apparent that manslaughter is of two kinds, and that involuntary manslaughter is as much manslaughter, within the meaning of the statute, as voluntary manslaughter. Of course, the word “manslaughter,” as used in § 1062, would not embrace involuntary manslaughter in the commission of a lawful act, because that is made a misdemeanor by statute. But we see no reason for holding that the statute does not embrace both voluntary and involuntary manslaughter in the commission of an unlawful act. It is argued that the legislature would not reasonably be presumed to have .intended to put involuntary manslaughter in the commission of 'an unlawful act in the same class as treason, murder, and other felonies mentioned in the section. It is to be noticed that perjury, false swearing, and subornation of perjury and false swearing are likewise not reducible. What the legislature may have intended we have no means of knowing, save as the intention may be gathered from the language employed, and we see no reason why the term “manslaughter,” as used in § 1062 of the code, was intended to
9. The court refused to charge the jury that the ordinance of the City of Atlanta, referred to in the indictment, was void for uncertainty, and did charge that it was an unlawful act for any person in charge of an automobile to operate the same in a careless and reckless manner upon any of the streets of the city of Atlanta. If the evidence were doubtful as to the guilt of the accused, the judgment of conviction would be set aside and a new trial ordered upon the first count in this indictment, with direction that the second count be stricken, but the evidence practically demands a finding that the accused was violating section 5 of the automobile act of 1910, and that he was at the time of the homicide operating his machine at a rate of speed greatly in excess of the maximum speed prescribed by that act. He was, therefore, plainly and unmistakably committing an unlawful act when he ran over and killed the person named in the indictment. There is no room for doubt on this question. No honest or impartial jury could reach any other conclusion from the evidence in the case. We do not see, therefore, how the accused could justly complain of the charge of the court that if he was operating his machine in a reckless or careless manner, in violation of the city ordinance, he would be guilty. It is utterly immaterial whether the ordinance was valid or not, or whether he was violating it or not. He was clearly acting in violation of the State law, and we will not set aside the conviction because the judge erroneously held that the city ordinance was valid and capable of enforcement, and submitted to the jury the question as to whether the accused was at the time of the homicide violating the ordinance. The same observations apply to the instructions of the court upon that part of section 5 of the act of 1910 which we have held to be too uncertain and indefinite to be enforced as a penal law. In view of the evidence, these instructions could not have been prejudicial.
Upon an examination of the whole record we are satisfied that no error was committed of sufficient materiality to require us to direct a new trial in the case. The accused was properly convicted. Indeed, under some of the evidence his conduct might well have