Opinion
38063.
DECIDED JANUARY 21, 1960.
Assault with automobile. Murray Superior Court. Before Judge Davis. October 2, 1959.
Walter H. Bolling, for plaintiff in error.
R. F. Chance, Solicitor-General, contra.
1. An indictment alleging that the defendant assaulted a named person with an automobile by running into and against such person and driving and operating his automobile over and against him with reckless disregard for human life and the life of the person so assaulted is sufficient as against a demurrer on the grounds that it is not specifically pointed out in what manner the act was unlawful, is a conclusion, and fails to inform the accused of the nature of his offense.
2. Since the verdict does not depend entirely upon circumstantial evidence, it was not error in the absence of request to fail to give in charge this principle of law.
3. Evidence of the manner in which the defendant was driving and the crowded condition of the highway on the occasion in question was sufficient to sustain the conviction for assault with an automobile by driving the vehicle in a criminally negligent manner.
DECIDED JANUARY 21, 1960.
James Bailey was indicted and convicted for the offense of assault with an automobile in that he did "run into and against the said person so assaulted by driving and operating said automobile over and against and upon T. L. Cain with a reckless disregard for human life and for the life of the said T. L. Cain." A special demurrer to the indictment was overruled and this judgment is assigned as error.
The evidence on the trial showed substantially the following: the north city limits of Chatsworth, Georgia, cross the highway on the slope of a hill about 300 feet south of its crest; there had been a serious collision just at this point after dark involving two motor vehicles and a large crowd had collected, variously estimated up to 75 cars and 200 people; two or three wreckers had arrived and were parked near the damaged vehicles and a State Patrol car with a flashing beacon was parked at or close to the crest of the hill where it could be seen 100 yards from the north; Trooper Cain and another person were standing just south of the wrecked cars about 400 feet or more from the crest of the hill on the west side of the pavement; the scene was too crowded to permit the chief of police, who arrived from the south or Chatsworth side to drive all the way to the wreck; the defendant, coming from the north toward Chatsworth "at a good rate of speed" came down the hill and ran over Cain and the other man; people shouted to stop the car, and the chief of police, coming from the south walked up to the defendant's car as it pulled over about 300 feet south of the point of impact. He asked Bailey if he had hit the men and Bailey said he had hit something, he didn't know what. His face was red, there was an odor of alcohol on his breath, and he said he had had two or three beers. The chief proceeded to the scene of the wreck leaving a policeman with the defendant; within 15 or 20 minutes he had returned and taken the defendant to the jail in his car, the policeman driving the defendant's car, the brakes of which were at that time not functioning properly so that it was necessary to pump them in order to stop the car. At the police station the defendant's face was red, he staggered when he walked, and was, according to another witness "very U.I." The defendant contended that he had drunk the beer three hours previously, was not intoxicated, that his brakes failed, and that the injury to the persons with whom he collided was pure accident.
The defendant's motion for new trial as amended was denied and this judgment also is assigned as error.
1. Ordinarily an indictment which sets out an offense in the language of the statute is sufficient. An assault is an attempt to commit a violent injury on the person of another. Code § 26-1401. "Assault and battery may be committed by striking another with an automobile intentionally, or by driving the machine so recklessly as to justify a jury in finding that there was a reckless disregard of human life and safety." Tift v. State, 17 Ga. App. 663 (1) ( 88 S.E. 41); Dennard v. State, 14 Ga. App. 485 ( 81 S.E. 378). In Wright v. State, 166 Ga. 1 (1) ( 141 S.E. 903) it was held that an indictment for murder alleging that the defendant did kill and murder one Baker by "running a certain Ford automobile driven by him against and onto said Baker," thereby inflicting wounds from which he died, was not subject to demurrer. In Martin v. State, 98 Ga. App. 136 ( 105 S.E.2d 250) an indictment of the defendant for misdemeanor "in that he did unlawfully drive and operate an automobile onto and against an automobile being driven by one Louise Head with heedless disregard for human life" was likewise held sufficient to withstand demurrer. This does not violate the rule in Roughlin v. State, 17 Ga. App. 205 (1) ( 86 S.E. 452) that where an act is intrinsically lawful, in order to sufficiently allege that the act was unlawfully done there must be a statement of fact as to the manner in which it was done, and not a mere conclusion to the effect that it was done unlawfully. While it is lawful to operate an automobile, it is not lawful to assault a pedestrian with it. That assault may be intentionally done for the purpose of running down and injuring the person assaulted, or it may be done simply by operating the vehicle in such a reckless, heedless, and criminally negligent manner as to run him down without having any specific intent so to do. In an indictment for assaulting a named person by running him down with an automobile, it is not essential for the indictment to allege that the defendant also violated some other statute, such as those prohibiting speeding or driving while under the influence of intoxicants. The demurrer is without merit.
2. The special ground of the motion for new trial contends that the court should even in the absence of request have charged the law relating to circumstantial evidence. Counsel for both sides in their briefs seem to go on the assumption that the issue here is whether there is any direct evidence that the defendant was intoxicated. However, this defendant was not on trial for driving while under the influence of intoxicants, but he was on trial for assaulting a pedestrian by driving in such a criminally negligent manner as to hit and injure him. His intoxication at the time is accordingly irrelevant except as it explains the manner in which he was driving. From the facts testified to by eyewitnesses, the defendant had already topped the crest of the hill, passed two wrecked automobiles partially blocking the road, two or three wreckers also partially or wholly within the road, and was threading his way through a crowded area where people were constantly crossing and recrossing the highway. For him to drive his car in such manner under these conditions, although the speed of his vehicle was not shown, and to hit two persons standing at the edge of the highway under these circumstances is sufficient to authorize a conviction. The evidence that he did so rests on direct testimony. The defendant's contention that his brakes failed while he was going down the hill and that in spite of his efforts to steer so as to avoid hitting anybody or anything he was unable to do so, if believed, would have been a good defense provided he was not otherwise operating his car in a criminally negligent manner, but this question was entirely for the jury, who decided the issue against him. Neither the general grounds nor the special ground of the motion for new trial are meritorious.
The trial court did not err in overruling the demurrer to the indictment and the motion for new trial.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.