Stephens v. State

G-uerry, J. The defendant was convicted of the offense of involuntary manslaughter. The indictment charged that he did on a named date operate his automobile on a public highway in this State in a wanton and careless manner and total disregard of human life, while under the influence of intoxicating liquors, at a speed greater than forty miles per hour, and without keeping a proper lookout, by reason of which conduct he ran into the rear of a certain automobile traveling along said highway, causing the death of one Polly Hagen. The evidence for the State sustained the allegations of the indictment. The defendant in his statement said that at the time of the wreck it was raining and foggy and "I had my lights on dim, and was running thirty to forty miles per hour,” and “just as I topped the grade they were right on me and if they had had a tail light the wreck would not have occurred.” He further denied that he was intoxicated. The trial judge charged the jury that the elements of the offense of involuntary manslaughter in the commission of an unlawful act are “first, the intentional commission of the unlawful act, and second, the killing of a human being as the proximate result of such act, but without any intent to kill.” The trial judge declined to give in charge the following request: "A person shall not be found guilty of any crime or misdemeanor committed by misfortune or accident, and where it satisfactorily appears there was no evil design or intention, or culpable neglect; if the defendant in this case did not intentionally drive and run the automobile which he is charged with driving against said automobile in which said Polly Hagen was riding, and at the time the collision occurred defendant was not driving said car in such a wanton or reckless manner or at so high a rate of speed as to render said machine or automobile obviously dangerous to others traveling the highway, whereby the collision occurred, and such collision was not caused by any evil design, intention, or culpable neglect on the part of said defendant, or if said defendant was not operating said automobile at the time of the collision while under the influence of liquor and drugs, or operating said automobile at [392] a speed greater than forty miles per hour, at the time of the collision, then such collision would be attributable to- misfortune or accident, and the defendant would not be guilty of any offense.” The request does not state a correct principle of law, as applicable to the present case. It in effect charges that in order for the defendant to be guilty of the crime charged, that the collision must have been the result of an evil design or intention. If the indictment were for murder such a charge would have been applicable. If there was an evil design or intention the offense would not be involuntary manslaughter. The issue in this case was whether the defendant was under the influence of intoxicating liquors and was operating the car at a rate of speed in excess of forty miles per hour at the time of the collision which resulted in the death of Polly Hagen. If he was under the influence of intoxicants at the time, and such condition was the result of accident, and not intentional, but was the result of the accidental or unintended drinking of intoxicating liquor, the law of accident or misfortune as applied to the facts of this case might have been applicable. The same thing may be said as to the operation of the car at a speed greater than forty miles per hour. In cases of this character it is not the intention as to the consequences of the act, being accidental, but it -is whether driving the car while under the influence of intoxicants or at a speed greater than forty miles per hour, was accidental. There can be no involuntary manslaughter if the act, the natural consequence of which was death, was intended. Such a case would be murder. Here the court in his charge had expressly told the jury that unless the person killed was killed as a result of the alleged unlawful acts, the defendant should be acquitted. The effect of the charge requested, taken in its most favorable light, is to say that if he, the defendant, was not guilty of committing any of the unlawful acts charged, “then such collision would be attributable to misfortune or accident and the defendant would not be guilty of any offense.” The court had expressly charged, that under such circumstances defendant must be acquitted. Where a request to charge is fully and accurately covered in the charge as given, the refusal of the request is not error. Perdue v. State, 126 Ga. 112 (54 S. E. 820). The court fully instructed the jury that unless the alleged unlawful acts had been committed by the defendant, and these acts resulted in the death of the person killed, [393] the defendant must be acquitted. The remaining assignments of error are without merit. The court did not err in overruling the motion for new trial. Judgment affirmed. Broyles, G. J., concurs. MacIntyre, J., dissents.