Summary
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.
Summary of this case from Bailey v. StateOpinion
37336.
DECIDED SEPTEMBER 15, 1958.
Assault and battery. Bartow Superior Court. Before Judge Davis. July 11, 1958.
Pittman Crowe, C. C. Pittman, for plaintiff in error.
R. F. Chance, Solicitor-General, contra.
1. The court properly overruled the demurrers.
2. There is sufficient evidence to support the verdict of the jury.
3. The court did not err in denying the motion for a mistrial nor in the rulings as to the special grounds.
DECIDED SEPTEMBER 15, 1958.
Aaron Martin was indicted for the offense of 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, the two vehicles being operated in a westerly direction on U.S. Highway 411 one mile east of Kingston, Georgia.
The defendant demurred to the indictment on three grounds which were substantially as follows: Ground 1 alleged that the indictment failed to set forth any offense against the accused; ground 2 that the indictment charged that the accused did "drive and operate auto against an auto driven by Louise Head, with a heedless disregard for human life" and failed to state just what human life the accused "heedlessly disregarded" so as to enable the accused to prepare his defense; and ground 3 that the indictment failed to state that any act was done "with a heedless disregard" for the life or person of Louise Head or with attempt to injure her.
The court overruled the demurrers and motion to strike the indictment whereupon the defendant was tried by a jury, found guilty and sentenced to serve six months in jail and twelve months on the public works. Counsel for the defendant made a motion for new trial on the statutory grounds and later amended his motion for a new trial by adding 5 special grounds.
The court denied the defendant's motion for new trial as amended, whereupon he filed his bill of exceptions in the Court of Appeals.
The evidence is substantially as follows: Louise Head testified that she was going from her home on Cherokee Avenue, in Cartersville, to her work as a nurse at McCall's Hospital in Rome, Georgia, on November 20, 1957, at about 9:30 p. m.; that she was driving her own car; that she was alone; that she first noticed the defendant parked at a stop sign near where she parked; that she thought he was waiting for her to pass; that as she drove out Cassville Road she noticed in her rear-view mirror that the defendant's car was easing along behind her; that she kept watching; that as she passed the rock crusher on the Rome Road in a sparsely populated area she noticed the car behind speed up and stay right at her rear bumper; that the defendant sounded his horn and she slowed up and pulled over so he could pass; that he pulled up beside her and eased along; that she speeded up and he speeded up and they both went around a curve in the road at a rapid rate of speed; that the defendant would dart toward her and she would have to apply brakes; that they got on the flat part of the road just before the bridge and the defendant sounded his horn continuously; that she knew not to cut in front of him but just kept going; that they crossed a narrow bridge and she speeded up and the defendant cut his vehicle right at her, hitting her and knocking her sideways; that she slammed on brakes and jumped out of the car saying, "What happened?"; that the defendant said, "I didn't hurt your car"; that she saw him run back to his car and pick something up off the seat; that as he approached her she ran out in the highway; that the defendant jerked her car door open and picked her pocketbook up off the seat; that the witness heard a truck coming and threw up both hands; that the truck stopped and she asked for help; that one truck driver jumped out and pursued the defendant and the other asked if she was hurt; that she felt faint and sat down on the truck fender and lowered her head. The witness further testified that she would guess that, from the first time the defendant sounded his horn until they finally stopped, she traveled a mile or more with the defendant either right at her bumper or riding abreast with her vehicle; that the defendant's right front fender hit her left front fender, knocking her to the right; that she suffered chest pains afterwards. On cross-examination the witness testified that she did not lose anything out of her car.
Mrs. Jessie Hardin testified that she saw the defendant driving on the Cassville Road on the night of November 19, 1957, and on several other occasions and positively identified his automobile.
R. D. Ruff of the G. B. I. testified that he made an investigation on November 24, 1957; that he went to the defendant's home and found the automobile in question; that the defendant admitted that he was involved in an incident on the night of November 20, 1957, wherein he followed a lady in an automobile; that he tried to pass her several times on the road towards Kingston and finally in attempting to pass her the right front of his car hit the left front of her car; that she pulled over and stopped; that he immediately pulled his car to the rear, got out of his car and went to the right side of her car and opened the door; that he then went back to his car and opened the right-hand door; that a truck driver came along; that the lady spoke to the truck driver and the defendant got in his car and drove off; that he drove one-half mile west then returned to his home without reporting the incident.
Charles Head testified that on November 20th, shortly after the incident involving his wife, he made an investigation of the scene and found a piece of pipe 14 to 16 inches long on the scene located about 10 or 15 feet from where the defendant's car had made marks on the highway spinning his back wheels as he pulled off; that the pipe was not of the material used to lay gas line and it was just lying there on the side of the road.
At this time the pipe was tendered into evidence. Counsel for the defendant objected, and the court overruled the objection and let the pipe go in.
The defendant's statement was substantially the same as the statement given to Officer Ruff which is shown in Ruff's testimony hereinabove.
Counsel for the defendant made a motion for a directed verdict on the issue of assault and battery and on the issue of simple assault, which the court denied.
Counsel for the defendant made a motion for a mistrial on the ground that the prosecution attempted to prejudice the jury when the assistant solicitor-general, Mr. White, made a statement which said substantially that he has a wife and if the defendant ever hits his wife's car he will never be tried before twelve men. At this time Mr. White withdrew his statement and the court denied the motion for a mistrial instructing "the jury to disregard any such remark and not let that have any bearing or any consideration whatsoever upon your verdict in this case. The jury will remember what the evidence was, and I caution Mr. White to be careful."
1. The defendant demurred to the indictment on the following grounds: 1. That the indictment failed to set forth any offense against the accused; 2. That the indictment charged that the accused drove the car "with a heedless disregard of human life" and failed to name Louise Head as the person in danger therefrom; 3. That the indictment failed to state that any act was done "with heedless disregard" for the life or person of Louise Head or with an intent to injure her.
In support of the contentions on the demurrers, counsel for the defendant cites Gober v. State, 7 Ga. App. 206 ( 66 S.E. 395). Neither the facts nor the pleadings of that case are similar to the facts of the instant case and therefore are not authority for reversal. In Tift v. State, 17 Ga. App. 663 ( 88 S.E. 41) this court said: "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. Dennard v. State, 14 Ga. App. 485 (1) ( 81 S.E. 378). . . The same is true where, under like circumstances, the automobile is driven against another vehicle in which persons are riding, whereby the collision occasions . . . physical injuries to persons in the vehicle so struck." See also Maloney v. State, 57 Ga. App. 265 ( 195 S.E. 209). The court properly overruled the demurrers.
2. We have set out the evidence somewhat in detail. The evidence shows that the defendant followed Louise Head through part of Cartersville, kept following her on a country road leading to Rome, at times bumper to bumper; that he kept sounding his horn continuously but refused to pass and instead of passing he pulled up beside the prosecutrix and speeded his car as she gained speed; that at times he would drive the car towards hers so that she would be forced to apply brakes in order to avoid being hit and that finally the defendant cut in front of her car and hit her car with his car; that she jumped out of her car and that the defendant started towards her car and then went back towards his car apparently to get something from it, and then came and opened the door of her car. It was at this time that a truck came along and stopped, and the defendant fled. This is sufficient evidence to support the verdict of the jury. The general grounds are sufficient to sustain the verdict of the jury.
3. Special ground 1 assigns error because the court admitted into evidence an iron pipe found near the scene of the collision. It is correctly contended that evidence must relate to the questions being tried by the jury. Since the pipe was found near the scene, and was introduced as part of the evidence, and in view of the overwhelming evidence against the defendant, we see no harm in admitting the pipe found near the scene, particularly in view of the evidence that after the defendant got out of his car and started to the car of Louise Head he returned to his own car and took some object therefrom, this object not having been positively identified at the time of the trial. This special ground is not meritorious.
4. Special ground 2 assigns error because it is alleged that the court failed to give the definition of battery. The court read the indictment to the jury and then gave a full definition of assault. Even if we concede (which we do not) that the reading of the indictment failed to cover the definition of battery, it will be noted that the evidence clearly shows that the defendant was guilty of assault with an automobile. The court thoroughly covered the definition of assault. It is not necessary for a judge to give the exact language of the Code in a charge. While it is the better practice to use the exact language of the Code, it is sufficient to cover the subject-matter in a substantial manner only. See Slocumb v. State, 157 Ga. 131 ( 121 S.E. 116) and Dyer v. State, 71 Ga. App. 41 ( 29 S.E.2d 922). This special ground is not meritorious.
5. Special ground 3 assigns error because it is alleged that the court erred in charging on the principle of law regarding flight. The evidence shows that the defendant did flee from the scene, and this court has held many times that where a defendant flees the scene of a crime it is erroneous for the court to fail to charge on flight when requested to do so. In any event it must be kept in mind that flight is only a circumstance to be considered by the jury and is not of itself sufficient to establish guilt. See Seay v. State, 63 Ga. App. 286 ( 11 S.E.2d 54) and McGahee v. State, 85 Ga. App. 581 ( 69 S.E.2d 797). This ground is not meritorious.
6. Special ground 4 assigns error because it is alleged that the court erred in failing to charge on misfortune or accident in view of the statement of the accused that "my front wheel grabbed and the right [wheel] hit her left front [wheel]." In view of the chase of more than a mile, it would appear that at that stage the defendant could not rely on misfortune or accident as a defense. This special ground has no merit.
7. Special ground 5 assigns error because of a certain statement on the part of counsel who assisted in the prosecution of the case. Immediately upon the making of the statement by counsel for the prosecution, counsel for the defendant asked for a mistrial, which motion the court refused in the following language: "I overrule the motion for mistrial, I instruct the jury to disregard any such remark and not let that have any bearing or any consideration whatever upon your verdict in the case. The jury will remember what the evidence was, and I caution Mr. White to be careful." Code § 81-1009 provides: "Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same; and, on objection made, he shall also rebuke the counsel, and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the plaintiff's attorney is the offender." It seems that the trial judge did all the Code required of him in instructing the jury to disregard the remark and in cautioning counsel to be careful. The court did not err in denying the motion for a mistrial. This special ground is not meritorious.
The court did not err in any of the rulings.
Judgment affirmed. Townsend and Carlisle, JJ., concur.