Opinion
35438.
DECIDED JANUARY 21, 1955.
Involuntary manslaughter. Before Judge Edwards. Franklin Superior Court. August 31, 1954.
George L. Goode, for plaintiff in error.
Carey Skelton, Solicitor-General, Johnson Johnson, contra.
In a prosecution for involuntary manslaughter in the commission of an unlawful act, the evidence fails to authorize a conviction if the State fails to show an unlawful act committed intentionally or as the result of criminal negligence.
DECIDED JANUARY 21, 1955.
The plaintiff in error, Jones Thomas, was jointly indicted in the Superior Court of Franklin County with William T. Minyard for involuntary manslaughter in the following manner: "The said Jones Thomas, while operating a Chevrolet motor vehicle truck, hereafter referred to as the Thomas vehicle, on a public road and highway which leads from 'Sanders Tree' to Mize, and known as State Highway No. 106, did halt, stop, and park said Thomas vehicle on his, Thomas' right side of the highway, with the left side of same within approximately six inches of the center line of said highway, and without any lights showing on said vehicle, during the hours of darkness, and the said William T. Minyard, while operating a Ford automobile, same being a motor vehicle, hereafter referred to as the Minyard vehicle, on said highway in an opposite direction from that of the Thomas vehicle, did halt, stop and park said Minyard vehicle on his, Minyard's right side of said highway, with the front left side of said Minyard vehicle parked within one foot of the center line of said highway approximately abreast of the Thomas vehicle, with bright head light showing on said Minyard vehicle, and without dimming same, and while said vehicles were so positioned on said highway, so that Horace York, who was operating an Oldsmobile automobile, same being a motor vehicle traveling along said highway, behind and in the direction the Thomas vehicle was headed, and in the opposite direction from that the Minyard vehicle was headed, and after the advent of darkness and before the dawn of the following day, and while the Minyard's vehicle headlights were blinding and interfering with the vision of Horace York, in whose automobile Mrs. Mollie York was a passenger, and as a result of the unlawful acts of parking said Thomas and Minyard vehicles abreast and within eight feet of the center line of said highway, and because of the unlawful act on the part of Minyard of not dimming his head lights on the approach of York, and because of the unlawful act of Thomas in not having any lights on his vehicle, Horace York did not see the vehicle of Thomas, and his vehicle collided with the rear of the Thomas vehicle and also with the Minyard vehicle, inflicting upon Mrs. Mollie York injuries from which she died, said death being caused by the joint and concurring unlawful acts of the accused, and which unlawful acts concurred to cause said death."
The defendants were jointly tried. There was undisputed evidence that the defendant Thomas was traveling in a Ford truck on a highway 18 to 18 1/2 feet wide in the direction of Mize; that, due to mechanical failure, his lights suddenly went out and he stopped the truck about 6 inches from the center line; that Minyard was proceeding in the opposite direction toward Toccoa and while some distance from the truck saw the lights go off; that he pulled up approximately alongside the truck about a foot from the center line and said, "Old man, can I help you?"; that Thomas asked whether he could put in a fuse; that he got out, took a fuse which Thomas handed him, took out the old fuse and replaced it, and that that fuse also blew out immediately; that he then heard a car approaching and got back into his automobile to pull away and unblock the road; that this transaction took about two minutes; that the York car, in which Mrs. Mollie York, the decedent, was riding as a passenger in the right front seat, came down the road at a speed of between 50 and 65 miles per hour; that, from the time the driver applied his brakes, this vehicle skidded a total of 51 feet; that it hit the truck, which was knocked a distance of 18 feet; that the Minyard vehicle was knocked a distance of 11 feet and overturned; that a timber protruding from the rear of the truck struck Mrs. York and inflicted injuries from which she died almost immediately. Minyard testified that his lights were dimmed. York testified that the lights of the Minyard car were on bright and so blinded him that he was unable to see the stalled truck until he was right up on it, and that the Minyard car was stationary as he approached.
After conviction this defendant filed his motion for a new trial on the general grounds, and the denial of this motion is assigned as error.
1. In Carbo v. State, 4 Ga. App. 583 ( 62 S.E. 140), it was held: "1. There can be no conviction of the offense of involuntary manslaughter, either in the commission of an unlawful act, or in the commission of a lawful act without due caution and circumspection, where the homicide is directly due to an independent intervening cause in which the accused did not participate and which he could not foresee. 2. To constitute a crime there must be either the joint operation of act and intention, or criminal negligence. Criminal negligence necessarily implies, not only knowledge of probable consequences which may result from the use of a given instrumentality, but also wilful or wanton disregard of the probable effects of such instrumentality upon others likely to be affected thereby." In Cain v. State, 55 Ga. App. 376 (1) ( 190 S.E. 371) it was held as follows: "Criminal negligence is something more than ordinary negligence which would authorize a recovery in a civil action. Criminal negligence as used in our Code is the reckless disregard of consequences, or a heedless indifference to the rights and safety of others, and a reasonable foresight that injury would probably result." The intent referred to is, of course, not the intent to kill but the intent to commit the unlawful act which proximately results in the death of another. Overman v. State, 187 Ga. 396 (3) ( 1 S.E.2d 20). The acts of the defendant charged to be unlawful are failure to observe Code (Ann. Supp.) § 68-314, providing that it shall be unlawful to stop or park a motor vehicle on a State-aid highway less than eight feet from the center line, and Code § 68-303 (k) and Code (Ann. Supp.) § 68-316, requiring lights visible for 500 feet. As to the latter section, it appears from the evidence that the absence of lights was the result of a mechanical failure of the equipment of the truck due to a blown fuse, and there is no evidence from which it might be inferred that this mechanical failure was either intentional or the result of negligence on the part of the defendant. There was no delay in seeking to correct the situation. It appears from the evidence that the Minyard car, from its position down the road approaching the truck, was so close that its driver actually saw the lights go out. It must have reached it within a matter of seconds, and within the next minute and a half one fuse had been tried and another was being put in. Accordingly, the failure to have lights burning on the vehicle must be considered the result of misfortune or accident for which there would be no criminal responsibility.
As to Code (Ann. Supp.) § 68-314, this was amended by the acts of 1947 (Ga. L. 1947, p. 1505) to provide "that the provisions of this section shall not apply to temporary stops made as a normal and reasonable incident to traffic conditions existing at the time." The traffic condition existing at the time was that the defendant, driving along a paved highway at night, was suddenly plunged into total darkness, and, although in motion, had no way of knowing whether he was continuing down the road, or running at an angle which, if continued, would take him over the shoulder of the road and into a ditch. In Nelson v. State, 27 Ga. App. 50 (4) ( 107 S.E. 400), the following charge of the court was approved: "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." The evidence is somewhat in conflict, but there was evidence to show that there was room on the shoulders of the road for the defendant to have driven his truck; however, it was not his duty to continue driving, in total darkness, until he ran off the road, but it was his duty to stop immediately. Thereafter, of course, since he could not continue driving without lights, and since he could not park on the highway less than 8 feet from the center line, it would be his duty in the exercise of ordinary prudence to ascertain the condition of the shoulders of the road, and their width, and to get the car off the road if it were possible to do so. Thus, it was not a violation of the law to stop the vehicle, and that part of the indictment which alleges that the defendant stopped and halted his vehicle sets out no unlawful act under the circumstances. The indictment also alleges, and the statute forbids, a parking of a motor vehicle within eight feet of the center line. To park is defined in Webster's International Dictionary as follows: "To stop and keep (a vehicle, esp. a motor vehicle), standing for a time on a public way, or to leave temporarily on a public way or in any open space, esp. in a space assigned for the occupancy of a number of automobiles. Statutes and ordinances placing restrictions on parking define the term variously. . . A vehicle halted while awaiting a traffic signal, or while allowing an occupant to alight, or a waiting passenger to get aboard, is not usually regarded as a parked vehicle." We think that parking includes the idea of intentionally stopping a motor vehicle with the intention of letting it remain stationary in the place stopped for some determinable period of time; and in this case any period of time less than that required by the defendant to accustom his eyes to the darkness and ascertain whether he could pull off the road would not be parking. Within that period, the Minyard car arrived. The defendant already had the fuse in his hand with which he intended to replace the blown fuse. Ordinarily, fitting in a fuse requires very little time, perhaps less time than to get out of the car and ascertain whether the vehicle may be removed from the highway. At the time the defendant halted his car he could not reasonably anticipate that Minyard would also stop abreast of him and effect a barricade of the highway. When, within less than two minutes, the York car was heard approaching, Minyard, who had the automobile not subject to mechanical defect, immediately jumped into his car to move it and unblock the road, and nothing the defendant could have done at that moment would, so far as appears, have averted the tragedy.
It follows from what has been said that the failure of the lights of the defendant's truck, and the halting of the vehicle upon the public road, were not intentional unlawful acts on the part of the defendant, nor were the acts committed voluntarily, with the knowledge of and in wilful or wanton disregard of the fact that their probable effect would be to injure others. Accordingly, the State failed to prove either the joint operation of act and intention, or the criminal negligence which, under the rule set forth in Carbo v. State, supra, is necessary for conviction.
The trial court erred in denying the motion for a new trial.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.