164 Ga. 467 | Ga. | 1927
Lead Opinion
The Court of Appeals desires instructions from the Supreme Court upon the following question:
“Moreland and Bray were jointly indicted for murder. More-land alone was tried (Bray not having been apprehended), and was convicted of involuntary manslaughter in the commission of an unlawful act. The evidence authorized a finding of the following facts: The two men, on a rainy day, were traveling in an automobile on a public highway in Cobb County, this State, to wit, the public highway from Atlanta to Marietta. Moreland was the owner of the car, and Bray was Moreland’s chauffeur and the driver of the car. While the automobile was moving at a high rate of speed, it collided with another automobile which was being driven in the opposite direction on the highway, and the collision caused the death of a woman who was riding in the latter car and who was the person that the accused were charged with murdering. The scene of the collision was at a point between Atlanta and Marietta, and some two or three miles from Marietta. At the time of the collision the automobile in which the accused were riding was being operated by Bray in an unlawful manner, in that it was being driven on a public highway at an unlawful rate of speed, to wit, fifty miles ah hour, and approached a sharp curve on the highway at the same unlawful rate of speed, and was being driven on the wrong side of the highway. Bray stated at
The Penal Code of 1910, § e?, provides that “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, 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
■ So we reach the conclusion that the question propounded by the Court of Appeals must be answered in the affirmative.
Concurrence Opinion
concurring specially. We agree that the question is answered correctly, but dissent from the view that the question, as propounded, is such a question as is contemplated by the constitution, authorizing the 'Court of Appeals to certify questions to this court. As we view the question, it simply inquires whether certain stated facts are sufficient to authorize the verdict rendered by the jury. In Lynch v. Southern Express Co., 146 Ga. 68, 71 (90 S. E. 527), a decision concurred in by all the Justices, this court said: “With a view of preserving uniformity of decision, the constitution provides for the certifying of constitutional questions’ to the Supreme Court, and further provides that 'The Court of Appeals may at any time certify to the Supreme Court any other question of law concerning which it desires the instruction of the Supreme Court for proper decision; and thereupon the Supreme Court shall give' its instruction on the question certified to it, which shall be binding on the Court of Appeals in such case. The manner of certifying questions to the Supreme Court by the Court of Appeals, and the subsequent proceedings in regard to the same in the Supreme Court, shall be as the Supreme Court shall by its rules prescribe, until otherwise provided by law/ Constitution of Georgia, art. 6, sec. 2, par. 9 (Civil Code of 1910, § 6506). Two features stand prominent in this constitutional provision: one is that the question certified is to be one of law; and the other is that the purpose of the certification is to settle the question of law for application by the Court of Appeals in a 'proper decision’ of the case by them. There can be no doubt that the words, 'question of law,’ as used in the constitution, considered abstractly or in connection with the context, were not intended to embrace questions of fact, or mixed questions of law and fact; the manifest object being to submit to the Supreme Court a definite question of law. The propriety of granting a non-suit or of directing a verdict depends upon the effect to be given the evidence.”
In Louisville &c. R. Co. v. Hood, 149 Ga. 829 (102 S. E. 521), the same subject was discussed. The above extract from the Lynch ease was quoted and approved, and it was said that “the ruling made in the Lynch ease, supra, has been followed in subsequent decisions by this court.” In the Lynch case the question propounded was whether the evidence was sufficient to withstand