Opinion
35183.
DECIDED MAY 31, 1954.
Involuntary manslaughter. Before Judge Pratt. Banks Superior Court. March 15, 1954.
Kimzey Kimzey, Herbert B. Kimzey, for plaintiff in error.
Hope D. Stark, Solicitor-General, contra.
The court erred in denying the motion for a new trial, for the reasons set forth in the body of the opinion.
DECIDED MAY 31, 1954.
Clifford Shockley will be referred to as the defendant. He was convicted of involuntary manslaughter on an indictment charging (omitting the formal parts) that he did "Unlawfully . . . without any intention to do so, but in the commission of an unlawful act, unlawfully and feloniously kill Cecial Turner . . . by . . . driving and operating a motor vehicle . . . propelled by gasoline while under the influence of intoxicating liquors . . . Clifford Shockley . . . while operating said automobile . . . on a public road and highway in Banks County . . . paved highway . . . while under the influence of intoxicating liquor . . . drove and steered said automobile in which Cecial Turner was a passenger riding in said automobile with Clifford Shockley, across the center of said highway . . . and across the left side of said highway, thereby causing said automobile to overturn and thereby giving to Cecial Turner mortal wounds of which mortal wounds Cecial Turner died."
The jury on the trial of the case returned a verdict of guilty of involuntary manslaughter in the commission of a lawful act. The defendant filed a motion for new trial on the statutory grounds, and thereafter added seven special grounds. The court in refusing a new trial filed a memorandum opinion, which was ordered filed but not recorded. The defendant specified this memorandum opinion as a part of the record in the case. Hence we quote it here. "It is contended by movant that the conviction for involuntary manslaughter in the commission of a lawful act is void because this charge is not included in the indictment which charged defendant with involuntary manslaughter in the commission of an unlawful act, to wit, the operation of an automobile while under the influence of intoxicating liquors. In Kelly v. State, 63 Ga. App. 231, 236, after stating that 'It has been held that where one is charged solely with the offense of involuntary manslaughter in the commission of certain specified unlawful acts, a conviction of involuntary manslaughter in the commission of a lawful act is entirely without authority of law,' the court further said: 'However, in Georgia, where the indictment charges an offense (involuntary manslaughter in the commission of an unlawful act), in order to convict of a lesser offense (involuntary manslaughter in the commission of a lawful act, which might produce such a consequence, in an unlawful manner), "the lesser offense must either necessarily be included in a general charge of the greater, or, if it may or may not be, then the averments of the indictment describing the manner in which the greater offense was committed must contain allegations essential to constitute a charge of the lesser." Watson v. State, 116 Ga. 607 (3); Reams v. State, 24 Ga. App. 135; Cambron v. State, 36 Ga. App. 784.' Just as the court there held, in the case at bar, 'The offense of involuntary manslaughter in the commission of a lawful act, which might produce such a consequence, in an unlawful manner, though not included in the general charge of involuntary manslaughter in the commission of an unlawful act, was, we think, sufficiently charged in the allegations of the present indictment describing the manner in which the greater offense (involuntary manslaughter in the commission of an unlawful act) was committed. The indictment after charging the defendant with killing a named person, without any intention, by driving and operating a certain automobile over that person at a greater rate of speed than 55 miles per hour, further charged him with operating the automobile "in said unlawful manner, and at a high and reckless and dangerous rate of speed, and in total disregard of all other persons then and there upon said highway." Therefore it appears that the indictment contained all of the averments necessary to constitute the lower offense.'
"In the case at bar, the indictment, after charging the defendant with killing a named person, without any intention to do so, 'by driving and operating a motor vehicle . . . while under the influence of intoxicating liquors, whisky, alcoholic liquors and intoxicating liquors,' and 'the said (defendant) then and there drove and steered said automobile in which (the deceased) was then and there a passenger riding in said automobile with (defendant), across the center line of said highway aforesaid and across the left side of said highway, thereby causing said automobile to overturn, and thereby giving to (deceased) mortal wounds, etc.' Under a reasonable construction of the indictment in the instant case it is my opinion that the lesser offense of involuntary manslaughter in the commission of a lawful act which might produce such a consequence in an unlawful manner was sufficiently charged. It was held in DeVere v. State, 45 Ga. App. 330, 332, that 'It is a well-settled rule in this State, that the language of an indictment is to be interpreted liberally in favor of the State. Penal Code, Sec. 929 (now sec. 27-701); Studstill v. State, 7 Ga. 2, 16.'
"It was held in Warnack v. State, 3 Ga. App. 590 (2), that where the act from which death results may or may not be lawful under the facts, both grades of the law of involuntary manslaughter should be given in charge.'
"Error is assigned on the use in the court's charge to the jury of the expression, 'without due caution and circumspection,' in connection with the charge relative to the offense of involuntary manslaughter in the commission of a lawful act. While this expression is not now in our Code defining this offense, there is in the section of our Code prescribing the punishment for the two grades of involuntary manslaughter the expression, 'in the commission or performance of a lawful act, where there has not been observed necessary discretion and caution.' Blackstone in his Commentaries (Book IV, p. 191), defining this offense, states: 'So, where a person does an act lawful in itself, but in an unlawful manner, and without due caution and circumspection . . .' In many decisions of both our courts of last resort in Georgia the same expression is used. An example is in Warnack v. State, supra, p. 596, where the court said: 'His offense would be involuntary manslaughter in the commission of a lawful act without due caution and circumspection.'
"The grounds of the amended motion complaining that the court failed to charge on circumstantial evidence is, in my opinion, without merit, the evidence being direct as to what happened, by one eye witness.
"I am aware that it was held in Overby v. State, 115 Ga. 240, that a verdict finding the defendant 'guilty of involuntary manslaughter in the commission of a lawful act' should be set aside on the motion to arrest the judgment on such verdict; and that it was said that 'Involuntary manslaughter in the commission of a lawful act is not punishable in this State, unless it is done without due caution and circumspection, and this last ingredient is wholly lacking in the finding of the jury as above set out.' This question was again before our Supreme Court on a habeas corpus proceeding, and in a lucid and forceful opinion by Chief Justice Jenkins the Overby case was in effect overruled. Summing up in that decision it was held: 'If the ruling by this court in Overby v. State, 115 Ga. 240, which was not by a unanimous bench, be, as in principle it would seem to be, in conflict with the ruling here made, it can not be followed. . . As we view the question involved in the instant case, it would not be involuntary manslaughter at all unless the act was committed without due caution and circumspection, and as we see it, it is useless for the jury to restate in their verdict any or all of the elements making up this offense, which were presumably given them in charge and defined by the court.' It was there observed that the generic word 'homicide' does not in itself import guilt, since it might be justifiable. 'The word manslaughter on the contrary, as defined by the Code, does import guilt. In all cases manslaughter is unlawful. It may be voluntary "upon a sudden heat of passion," and "without malice or any mixture of deliberation whatever" or involuntary "in the commission of an unlawful act" or in the commission of a "lawful act without due caution and circumspection.'"
"As to the assignment of error on failing to charge on misfortune and accident, it is my opinion that the jury was given the equivalent of this rule in the charge. The elements of the offense of involuntary manslaughter in the commission of a lawful act without due caution and circumspection were given, and followed by this language: 'A crime or misdemeanor shall consist in the violation of a public law in the commission of which there shall be a union or joint operation of act and intention, or criminal negligence. Now criminal negligence is something more than ordinary negligence which would authorize a recovery in a civil action, and is such a recklessness or carelessness resulting in injury or death as imports a thoughtless disregard of consequences or heedless indifference to the safety and rights of others and a reasonable foresight that injury would result.' Also the following was given in charge: 'If the jury should believe the defendant killed the person named in the indictment without intention to do so in the commission of a lawful act, as alleged, but that the same was not done without due caution and circumspection and in a manner which might probably produce such consequence in an unlawful manner they should acquit.'
"Moreover, as I construe the testimony, the theory of accident was presented alone in the defendant's statement, if at all. In such a state of the record, it is not error to fail to charge on accident in the absence of a timely written request. Rich v. State, 169 Ga. 425 (5).
"I am thus unable to find reversible error in any of the assignments in the motion for a new trial as amended."
It will be noted that in the memorandum opinion the trial judge refers to Overby v. State, 115 Ga. 240 ( 41 S.E. 609), to the effect that the Supreme Court had subsequently overruled the Overby case. The trial judge did not give the citation to which he was referring. It is Henson v. Scoggins, 203 Ga. 540 ( 47 S.E.2d 643).
1. (a) It is a well-settled principle of law in this State that, where an indictment charges involuntary manslaughter while in the commission of an unlawful act only, the defendant cannot be convicted of involuntary manslaughter in the commission of a lawful act without necessary caution and circumspection. If the allegations of the indictment of the greater offense are sufficiently broad to include the necessary allegations as applied to the lesser offense, the indictment is good. If the evidence is sufficient to support the lesser offense and a verdict is returned by the jury for the lesser offense, such verdict is good. If the allegations of the indictment as to the greater offense are not sufficiently broad to include the lesser offense, a verdict finding the defendant guilty of the lesser offense is not a valid verdict. We have above set forth, in the history of this case, the memorandum opinion of the learned trial judge as well as the indictment, for the purpose of embracing in the opinion the questions to be determined.
(b) We have read the indictment in this case again and again. We find no wordage in the indictment of the greater offense which would include the lesser offense. It will be observed from the indictment that the defendant is charged as follows: (1) with operating the automobile while under the influence of intoxicating liquors; (2) while in such condition, operating his car across the center line of the road; and (3) with operating his car on the left-hand side of the road. All these allegations are violations of penal statutes. In the memorandum opinion the trial court called attention to Overby v. State, 115 Ga. 240 ( 41 S.E. 609), and Henson v. Scoggins, 203 Ga. 540 (5a) ( 47 S.E.2d 643). We will not discuss these cases other than to say that the Supreme Court was not dealing, in either of those cases, with the proposition as to whether or not the allegations of the indictment for the greater offense were sufficient to include the lesser offense. This is in issue here.
We will not deal with the question as to whether or not there is sufficient evidence to sustain the verdict for the lesser offense, since under our construction of the indictment the lesser offense was not set forth therein. Under the allegations of the indictment in the instant case, the verdict of the jury is for that reason unauthorized. Accordingly, we will not discuss the special grounds. We are aware that, in an indictment such as is revealed by this record, the greater and the lesser offenses may be set forth by appropriate pleadings.
The court erred in denying the motion for a new trial for the reasons above set forth.
Judgment reversed. Townsend and Carlisle, JJ., concur.