34 S.E.2d 555 | Ga. Ct. App. | 1945
1. It is not cause for reversing the denial of a continuance that the movant made a legal showing as to the absence of one witness (his mother), it appearing that another witness (his brother) testified to the same fact to which the absent witness was expected to testify, and it not appearing that the discretion of the court was abused. Huffman v. State,
2. The request to charge was fully and correctly in the general charge, and the refusal to charge the request was not reversible error.
3. Where a defendant is on trial charged with murder and the court refuses to charge the jury on involuntary manslaughter in the commission of a lawful act in a unlawful manner, such refusal is not error where the evidence shows that the charge requested is not applicable. Washington v. State,
4. The solicitor-general in his argument to the jury made the following statement: "You [under the evidence] should make a verdict of guilty in this case because it would be a precedent and show the public you will stop automobile collisions." The defendant moved for a mistrial. Held: Even if we concede that the remark was improper, we are, nevertheless, of the opinion that any harm done by it was removed by the timely instructions from the court, and therefore do not think that the judge committed reversible error in overruling the motion for a mistrial.
5. The evidence authorized the verdict.
2. The defendant contended that the collision between the automobiles, which resulted in the death of the deceased, was a misfortune or an accident. Complaint is made that the court erred in refusing to give to the jury the following requested charge: "A crime or misdemeanor shall consist in a violation of a public law, in the commission of which there shall be a union or joint operation of act and intention, or criminal negligence." This is in the *536
language of the Code, § 26-201. Considering the charge as a whole, it was not error to omit the requested instruction. The court charged in part as follows: "You are instructed that our law provides that 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. If you determine that there was no evil design or intention, and no culpable negligence on the part of the defendant, but that the killing of Mr. John Jackson and Miss Carolyn Roberts 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." In Hagood v.State,
3. The only act or acts of the defendant, which the jury were authorized to find caused the death of the deceased, were unlawful acts, acts which were violations of a penal auto statute designed for the protection of life and limb. Thus the law of involuntary manslaughter in the commission of a lawful act in an unlawful manner was not applicable, under the evidence or the defendant's statement, and a failure to charge with or without request was not error.
4. The solicitor-general in his argument to the jury made the following statement: "You [under the evidence] should make a verdict of guilty in this case because it would be a precedent and show the public you will stop automobile collisions." We think, *537
in the absence of anything to the contrary, the solicitor-general's remarks should be regarded as a deduction from the evidence, hence the insertion of the brackets in these remarks by us. Floyd v. State,
5. The evidence authorized the verdict for involuntary manslaughter in the commission of an unlawful act.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.