48 S.E.2d 922 | Ga. Ct. App. | 1948
1. The evidence sustains the verdict.
2. Where, as here, an unlawful act is committed resulting in the injury or death of two or more persons in the operation of a motor vehicle, the accused may be convicted of a crime where two or more persons are the victims, without violating the constitutional provision as it relates to former jeopardy.
The evidence in the instant case of the State against the defendant wherein he was accused of the unlawful killing of Lonnie Bellflowers was substantially that Lonnie Bellflowers was operating a bicycle at night to the extreme right side of a street in the City of Fort Valley. Riding with him on the bicycle was W. L. Johnston. While thus operating the bicycle, the defendant, who was operating his automobile going in the same direction as the bicycle, accompanied by several companions who were riding in the car, overtook the bicycle which Bellflowers was operating. The automobile of the defendant was at the time being operated at the speed of between 40 and 45 miles an hour, greatly in excess of the speed limit authorized by an ordinance of the City of Fort Valley. In doing so, he ran the automobile into the bicycle and against Bellflowers and Johnston with great force and violence, thereby inflicting injuries on Bellflowers which resulted in his death and bruising and injuring Johnston at the same time. The evidence reveals that the bicycle was demolished; that the windshield of the automobile was broken (indicating that Bellflowers was caused to strike the windshield); that the radio aerial of the automobile was dislocated and that the lamp and right fender were greatly damaged. The defendant, after striking the bicycle, did not stop his car to investigate the result of the collision. He proceeded toward Perry, Georgia. Before reaching that point, the defendant returned to Fort Valley, and in a clandestine manner made an effort to have his automobile repaired. The defendant contended that the impact of his car and the bicycle was caused by the defendant being blinded from the lights of an automobile which he was meeting at that time and place. The State's evidence contradicted this contention of the defendant to the effect that there was no car approaching.
The indictment on which the defendant was convicted of the unlawful killing of Bellflowers was returned by the Grand Jury of Peach County at the November term, 1947, and subsequently the indictment for assault and battery on Johnston was returned *654 at the March term, 1948. This last indictment is the one in the instant case. Both indictments are identical except that the former indictment alleged the killing of Bellflowers, and the second alleged an assault and battery upon Johnston. The instant case is here assigning error (a) that the evidence does not support the verdict; (b) that the court erred in overruling the plea of autrefois convict. 1. While error is assigned on the general grounds, it is not seriously contended by distinguished counsel for the defendant, that the evidence does not sustain the verdict on the general grounds. Therefore, we will not here discuss the general grounds other than to say that the evidence sustains the verdict in the instant case.
2. But it is earnestly and learnedly contended that the verdict in the instant case should be set aside because the court erred in sustaining the motion to strike the plea of autrefois convict under the provisions of the Constitution. Code, § 2-108. The only decision in this State almost identical to the question now before us is the case of Webb v. State,
Judgment affirmed. MacIntyre, P.J., and Townsend, J.,concur.