186 Ga. 592 | Ga. | 1938
Clyde Meadows was convicted of the offense of murder, with a recommendation. The indictment charged that he “with force and arms and with malice aforethought, wantonly and with reckless disregard for human life, drove an automobile on and over the public road running through the City of Hnion. Point, Ga., known as State Route No. 12, while under the influ
The uncontradicted evidence shows that Chapman, a pedestrian on a public highway within the limits of the City of Hnion Point, Georgia, was run over and killed by the accused while driving an automobile at a higher rate of speed than that permitted by an ordinance of the city. Were the facts such as to justify the jury in finding the defendant guilty of murder ? His counsel takes the position that the killing was an accident, which the accused did his best to prevent, but could not. So far as it appears from the record, the accused and the deceased were strangers to each other. There is no suggestion of ill will and no proof of express malice. Witnesses testified to the good character of the prisoner, and no evidence was offered as to his general bad character. The killing occurred at about six-thirty o’clock on a Saturday evening, near the center of the corporate limits of a municipality, on a public road, unpaved, but sixty feet wide, with no ditch on either side. The automobile that ran over the deceased was at the time being driven about forty miles an hour on a highway frequently traveled. By an ordinance of Hnion Point it was unlawful to drive an automobile on any street, road, or highway therein at a speed greater than twenty-five miles per hour. The accused did not stop after his car hit the deceased, but, though told by Roger Harden, who was traveling with him, that he had hit and killed a man, the accused continued on his way. Harden testified: "I told him three times before he ever hit the man that yonder was a man walking. . . I don’t have an idea he saw him as quick as I did, because he was on my side.” There was evidence to show that the accused was driving on the extreme right of the road, and that the deceased was walking on the same side of the road. Several witnesses tes
We think the facts and circumstances of the killing, as disclosed by the testimony of the State’s witnesses, sufficient to authorize the jury to find the defendant guilty of murder. See Butler v. State, 178 Ga. 700 (173 S. E. 856); Jones v. State, 185 Ga. 68 (194 S. E. 216). There was only one actual eye-witness to the killing, Eoger Harden, who was sworn by the defendant. It is earnestly insisted by his counsel, that, regardless of what other witnesses swore as to his conduct immediately before and after, the evidence of this witness shows that the death of the deceased resulted from his own conduct in suddenly stepping in front of the automobile, and therefore that the homicide was directly due to an independent and intervening cause for which the accused was not responsible. His position is that there can be no conviction, even of involuntary manslaughter in the commission of an unlawful act by a drunken speeding driver, when the conduct of the pedestrian would have brought about his own death on that occasion, even if the driver of the car had not been drunk and had not been driving at a greater rate of speed than that allowed by law. The portions of the testimony of Eoger Harden in point are : “I was in the car with Clyde [Meadows] when this accident happened. . . The accident happened not so very far before you turn off the highway to go to the stores. . . I was on the front seat with him. . . When I first saw the man [the deceased] he was walking by the side of the road, the right-hand side. He got outside the road. . . He walked on the outside of the road, and then he started back into the road, and just as he started back into the road I could see him guide his head to the left-hand side and looked back and saw us, and when he started back into the road Clyde was right on him. He cut to the right-hand side of the road to go around him, and just as he cut to the right the man
If this testimony stood uncontradicted, the argument predicated upon it would present a very serious question. But the jury could have found that the facts were materially different from what the
To say that an automobile wabbled gives a very different impression as to its performance from that testified to by the defense witness. It indicates involuntary action on the part of the driver. Among the definitions of the word “wabble” in the New Standard Dictionary are: “to vacillate or sway unsteadily from side to side; to vacillate or show unsteadiness.” The New Merriman-Webster defines it as follows: “To move or move along with an irregular rocking or staggering motion or unsteadily from one side to the other.” Who can forget the description of the “double wabble” given by Judge Longstreet in his sketch of the shooting match, in his “Georgia Scenes?” Again, instead of believing the testimony of the defense witness that the defendant was unable until near
Drunkenness, like any other fact, may be proved by indirect as well as direct testimony. When a witness testifies to the actions and appearance of the accused, and forms an opinion therefrom that he was drunk, and so testifies, his evidence is material and has probative value. When the issue is whether or not at a certain hour the accused was under the influence of intoxicating liquors, testimony as to his conduct, actions, and appearance a few hours before and a few hours afterward is relevant on that question. The fatal injury occurred about 6:30 p. m. The accused was arrested near midnight thereafter. A State’s witness testified: “I helped arrest him. He was in a drunken stupor at the time we arrested him. I say that because he acted like it and he talked like it and walked
Upon a careful review we are unable to say that the verdict is unsupported by the evidence. The charge to the jury is not before us, but we áre bound to assume that the various theories presented by the testimony were fairly and fully presented; that the jury duly considered, under proper instructions, whether the homicide was an unavoidable accident, or- whether under all the facts and circumstances the offense was involuntary manslaughter instead of murder. It is our duty to give effect to the finding of the jury, when it is supported by the evidence, that even if the killing were involuntary, it is nevertheless murder “if 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,” for our law declares that in such a case “the offense shall be deemed and adjudged to be murder.” Code, § 26-1009. We are bound to conclude that in overruling the motion for new trial the judge exercised the sound discretion which the law wisely placed in his hands, and that his refusal meant that he approved of the verdict. It is the duty of the judge, on motion, to grant a new trial, though there be some evidence to support the verdict, if he feels that it is against the weight of the evidence, or that on the whole justice would be better served if a new trial were granted. But we have no such power. Although we might have been better satisfied if the jury had found the defendant guilty of involuntary manslaughter instead of murder, or if the judge had granted a new trial, “yet as a jury of the vicinage has seen proper to render a verdict for the defendant in error in a case turning upon questions of fact, the judge who presided in the case has approved the verdict, and the motion for a new trial is confined to the general grounds, this court, in accordance with the rule of non-interference in such cases, feels constrained to affirm the judgment overruling the motion for a new trial.” Walters v. Freeman, 116 Ga. 423 (42 S. E. 741).
Judgment affirmed.