Nelson v. State, 27 Ga. App. 50

Bloodworth, J.

The accusation in this case is based upon section 2 of an act approved August. 20, 1918 (Ga. L. 1918, p. 200), and charges that the accused operated an automobile on a public highway in Macon county “without having two bright lights burning on same throwing a light at least fifty feet ahead during the period between one hour after sunset and one hour before sunrise.” The trial resulted in a verdict of guilty. A motion for a new trial was overruled, and the movant excepted.

1. The judge did not err in failing to give in charge to the jury § 40 of the Penal Code of 1910, which is as follows: “ 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.” The crime for which the plaintiff in error was prosecuted may have followed a “misfortune or accident,” but it was not committed by “misfortune or accident.” The accused voluntarily and deliberately drove the car after the alleged “ misfortune or accident.”

2. Error is alleged as to the charge ’ as a whole. Under repeated rulings of the Supreme Court, before such a ground can be sustained, it must appear that the entire charge was error. It does not so appear in this case. “Where error is assigned to the charge as a whole, such assignment will not be considered if it appears that any part of the eharge complained of was legal.” Dixon *52v. State, 105 Ga. 787 (1) (31 S. E. 750). See also Anderson v. State, 72 Ga. 98 (2); Smith v. State, 119 Ga. 113 (3) (46 S. E. 79); Miller v. State, 121 Ga. 135 (2) (48 S. E. 904).

3. Complaint is made that tbe “court erred in failing to charge the defense offered by movant.” This defense arose solely from the statement of the defendant, and, in approving this ground of the motion for a new trial, the judge in a note said: “No request, written or otherwise, was made by defendant’s counsel for any other or further charge than was given by the court.” “ In the absence of a written request so to do, it is not error for the trial judge to fail to charge the law of the theory of the accused presented solely by the prisoner’s statement.” Weldon v. State, 21 Ga. App. 330 (94 S. E. 326).

4. Under the facts of this case the following charge was not erroneous: “ A person has no right to operate a motor-vehicle upon the public highways of the State between the hours prescribed in the law without the lights therein prescribed; and if a person should be operating such motor-vehicle at night and between the hours prescribed in the statute, and the lights should become suddenly extinguished, it would be the duty of said person to stop, and not drive such vehicle further on a public highway; and if he should so drive after such lights become extinguished upon a public highway, he would violate this law and be liable to prosecution as for a misdemeanor.”

5. The last ground of the motion for a new trial alleges error “ because movant contends that the court erred in failing to charge the jury the definition of a crime or misdemeanor, as found under section 31 of Park’s Penal Code, which is as follows: ‘ A crime or misdemeanor shall consist in a violation of a public law, in the commission of which there shall be a union of joint operation of act and intention or criminal negligence.”’ This ground of the motion is without merit. “The judge should explain to the jury the meaning of technical terms which occur in his instructions; but a failure’ to do so will not generally be ground for a new trial, in the absence of an appropriate and timely written request for such explanation.” Weldon v. State, 21 Ga. App. 330 (1 e) (94 S. E. 326), and cases cited. While criminal intent is a necessary element in the commission of the crime for which the plaintiff in error was prosecuted, criminal intent is simply the intent *53to do the act which results in the violation of the law, and not the intent to commit the crime itself. “The defendant intended to commit the act which the law prohibits.” Mitchell v. State, 20 Ga. App. 778 (2) (93 S. E. 709).

6. The evidence demanded the verdict, no error of law was committed, and the motion for a new trial was properly overruled.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.

Case Details

Case Name: Nelson v. State

Court Name: Court of Appeals of Georgia

Date Published: May 11, 1921

Citations: 27 Ga. App. 50; 107 S.E. 400; 1921 Ga. App. LEXIS 678; 12314

Docket Number: 12314

Court Abbreviation: Ga. Ct. App.