23 S.E.2d 578 | Ga. Ct. App. | 1942
Lead Opinion
The evidence supported the verdict, and none of the special grounds of the motion for new trial discloses reversible error. The court did not err in overruling the motion.
1. The evidence authorized the verdict.
2. The judge charged the jury in part as follows: "Each count in this indictment presents a separate and distinct charge by the State against the defendant. You will consider and determine the defendant's guilt or innocence upon each count in this indictment; and as the court has said, each count contains a separate and distinct charge against the defendant and it will be your duty to consider each and every count in this indictment separately and to return a verdict as to each and every count in this indictment, unless, gentlemen, you should find the defendant not guilty under the law which the court will hereafter give you in charge, in which event you may return one general verdict of not guilty, in the form which the court will hereafter give you." On this excerpt the defendant assigns error because: "(a) Said charge was erroneous as a matter of law, because under the indictment and the evidence the three persons alleged to have been killed in counts 1, 2, and 3 of the indictment, and the two persons alleged to have been assaulted in counts 4 and 5 of the indictment, were riding in an automobile together, and were struck by an automobile driven by the defendant, at one and the same time, at one and the same place, and all being one and the same transaction, and being the *468 result of one single stroke, which under the law could have amounted to only one offense against the State, but which were treated by the court under said charge as being separate and distinct charges, amounting to separate and distinct offenses, authorizing separate and distinct verdicts, carrying separate and distinct penalties upon each. (b) Said charge was confusing and misleading to the jury because it tended to, and probably did cause the jury to believe that they were authorized and required to consider each count with a view of acquitting the defendant on all counts, acquitting him on some of them, or convicting him on all counts, or on some of them, and to treat each of the counts as separate and distinct trespasses against the individual persons alleged to have been killed in counts 1, 2, and 3, and the persons alleged to have been assaulted in counts 4 and 5 of the indictment. (c) Said charge was further confusing and misleading to the jury because nowhere in the entire charge did the court ever explain to the jury that if under the evidence they found as a matter of fact that the persons alleged to have been killed in counts 1, 2, and 3, and the persons alleged to have been assaulted in counts 4 and 5 of the indictment, were the victims of one and the same stroke, at the same time and place, and all the same transaction, there could be but one offense against the State."
There was no demurrer to the indictment, and under the ruling in Webb v. State,
In the instant case, in the commission of an unlawful act the defendant drove his automobile into another automobile causing a wreck in which three persons were killed and two were injured, and he was convicted under three counts of involuntary manslaughter in the commission of an unlawful act, and two counts of assault and battery. "A reckless disregard of human life may be the equivalent of a specific intent to kill. . . The presumption of malice may arise from a reckless disregard of human life." Dennard v. State,
It is well to consider that a person driving along a public highway can be presumed to know that he will meet and pass other vehicles which are lawfully using the highway, and that these vehicles may carry one or many persons. There may be an automobile in which there is only the driver, while on the other hand there may be a bus in which twenty or more persons are riding. In presuming that a person "knew the natural and necessary consequences that would result," we think it follows that the defendant in the instant case can be presumed to have known that he would collide with an automobile in which five persons were riding, and that each might be affected by his unlawful act as a natural and necessary consequence. We see no reason why the presumption of knowledge of the exact consequences can not be imputed to the defendant as well as the presumption of malice and intent. By his unlawful act he placed himself in the position of impliedly intending to commit the crime, and, as he "knew the natural and necessary consequences that would result," it follows that he intended (by implication) to drive the automobile into the other car, and that he had knowledge (by implication) that the other carried five persons, three of whom would be killed and two injured by his unlawful act. In looking past the act to the result we think this was not a situation where the intent was single, as in the case of a thief who at one time stole several articles owned by different persons, but it was a situation where the intent was several, as in the case of the public official who, by one act of conversion, committed separate and distinct offenses by the embezzlement of two separate trusts. We think the defendant was accountable for every offense charged in the indictment, and that the court did not err in overruling the motion for new trial.
Judgment affirmed. Broyles, C. J., concurs.
Dissenting Opinion
1. The defendant was convicted in *471 each count on an indictment which contained five counts. The first three counts charged murder in the killing of three separate persons, one deceased being named in each count; the last two counts charged assault with intent to murder two separate persons, naming one in each count. The jury returned a verdict of guilty of involuntary manslaughter under counts 1, 2, and 3, and verdicts of guilty of assault and battery under counts 4 and 5. He was sentenced to serve a sentence on each count, 1, 2, and 3 consecutively, and a sentence of 12 months on counts 4 and 5 concurrently. He filed a motion for new trial which was overruled and he excepted. The evidence developed that at the time of the transaction the defendant was illegally operating a truck which he drove against an automobile in which the five persons named in the five counts of the indictment were travelling. The persons named in the first three counts died as a result of injuries received in the collision. The two mentioned in the last two counts, though injured, survived. The court charged the jury that they might find the defendant guilty of three different offenses of illegal homicide and in addition also find him guilty of two separate offenses of assault and battery under counts 4 and 5.
Under the record, the question presented is whether the defendant was guilty of one offense or of five. This presents a question about which there has been much learned discussion and great diversity of opinion. In 22 C. J. S. 414, § 278, we find this statement: "While the courts are in hopeless conflict when it comes to a solution of the problem of identity of offenses, it is generally held that the prohibition of the common law and of the constitutions is against a second jeopardy for the same `offense,' that is, for the identical act and crime." In 14 Am.Jur. 957, § 278, after discussing the question and citing quite a number of authorities, we find this statement: "In a murder case it is not necessary for the plea to state that the person alleged in the first indictment to have been killed was the person named in the second indictment, because two persons might have been killed by the same criminal act." See also 113 A.L.R. 215, 222, note; State of Minnesota v. Fredlund,
Judge Hill, speaking for this court in Dean v. State,
2. But it is contended by the State that since there was no demurrer to the indictment the defendant is stopped to raise the question after verdict. I do not think this position is tenable. See Dean v. State, supra; Lowe v. State, supra; Lee v.State,
3. Since the injuries alleged and proved regarding counts 4 and 5 resulted from the identical acts which are alleged to have caused the deaths in the first three counts, the assault was necessarily involved in and became merged into and lost its identity in the proof of the completed act. There can be no assault with intent to murder in the completed act of murder involving an identical transaction. The lesser merges into and becomes a part of the completed act. The court should have charged the jury that there was but one offense involved. If the evidence showed, according to the allegations of the indictment, that the illegal conduct of the defendant caused the death of any one of the persons alleged to have been killed, he would be guilty of criminal homicide and there would be proved one offense. If the State was unable to prove that *475
death did not result from the injuries thus received then the judge should have charged as to the lesser grades of homicide which were embraced within the homicide counts. Under the facts of this case assault with intent to murder and assault and battery were embraced in the homicide counts. So far as the record shows the last two counts were surplusage. Smith v.State,