ARGUED MAY 13, 1963.
DECIDED JUNE 18, 1963.
Murder. Douglas Superior Court. Before Judge Foster.
A. Hugh Leatherwood, Sr., for plaintiff in error.
Dan Winn, Solicitor General, Eugene Cook, Attorney General, Rubye G. Jackson, Assistant Attorney General, contra.
1. Where the evidence discloses that the defendant wilfully and wantonly violates statutes designed to insure the safety of the traveling public on the thoroughfares of the State and the natural and probable result of his conduct is to take human life, malice is implied, and if the infractions of the statutes cause the death of another the defendant may be found guilty of murder.
2. Where an excerpt from a charge isolated from its context appears to be confusing, but, when construed with the remainder of the charge, is plain and explicit, a ground of a motion for new trial that segregates the excerpt from the whole charge and attacks it as misleading or confusing is without merit.
ARGUED MAY 13, 1963 — DECIDED JUNE 18, 1963.
James Howard Geter was indicted, tried and convicted of murder, with recommendation of mercy, in Douglas Superior Court. The indictment alleged: that the defendant while driving an automobile upon a public highway (U.S. Highway 78), under the influence of intoxicating liquors and beverages, did thereby pass and attempt to pass three vehicles traveling in the same direction, drove his vehicle to the left and wrong side of the highway, and on approaching the crest of a hill drove across the center line of said highway which was clearly marked with a yellow no-passing line and head-on into a vehicle approaching from the opposite direction containing seven people, three of whom died from injuries sustained in said collision; said acts being unlawful and which naturally tended to destroy human life and being wilful and international and showing a wanton and reckless disregard for human life.
The plaintiff in error filed a motion for new trial on the general grounds, although in this court he insists only upon the ground that asserts that the verdict was without evidence to support it and two special grounds added to the motion by amendment.
There was no conflict that the City of Villa Rica is located at the boundary of Carroll and Douglas Counties and lies partly in each county; that U.S. Highway 78 extends in an easterly direction from the Carroll line towards Douglasville; that Guy Matthews' used car lot is situated on the right side of the before-mentioned highway heading cast; that the fatal collision occurred about two o'clock on March 31, 1962, on the highway in front of the car lot and within the city limits of Villa Rica; that the defendant approached the locus of the collision from the center of Villa Rica and was traveling towards Douglasville; that from where his vehicle approached the place where the collision occurred the crest of a high hill looms ahead; the State's witnesses established the distance between the point of contact and the crest of the hill at 300 to 600 feet, while the defendant testified the distance was about 150 to 200 feet; the State's witnesses, the defendant and his witnesses were in agreement that the defendant did drive his automobile from his right to the left of the road in attempting to pass the automobile preceding his and then his car and the station wagon in which the deceased were riding clashed together and resulted in three deaths as alleged in the indictment.
On the issue of the defendant's sobriety several State witnesses gave evidence. A patrolman, Frank Dove, who observed the defendant at Villa Rica Hospital some time after the collision occurred, testified: "I did observe his condition with respect to the use of alcoholic beverages and I smelled alcohol on his breath at that time. At the time I couldn't find any symptoms except the smell of alcohol on his breath."
Jesse Willis, justice of the peace, stated: "After the collision occurred, I did go out to the highway to the scene. I did see Howard Geter's movements and hear him talk and observe his actions at the scene. I saw all three of them in that car. I would say Geter walked and talked abnormally, all three of them. I did not have an opportunity to smell his breath. I went to the Villa Rica Hospital after leaving the scene of the collision. It was just a few minutes after the impact when I was first close to him and observed his actions and conduct. I would say the time it took me to run from the lot across the road. The cars was very close together, they spun away from each other and there wasn't too much distance between them. One of the colored boys was hurt. I certainly did form an opinion that he was under the influence of intoxicating liquor. The actions and manner of speaking that caused me to form an opinion as to whether or not he was drinking, well, just like you see anybody drinking, you can tell when a fellow is drinking a little bit to much, you know how he acts. They were all three falling around on one another, all three of them. Howard Geter was staggering. I certainly think he was under the influence of liquor."
Officer Carlos Roberts was positive of the defendant's drunkenness. He testified: "When I arrived at the scene the accused was standing just back of his automobile with the other two colored boys that was with him, Richard Dobbs and Jerome Boyd, the three of them were standing just back of his car together ..." "While I was at the scene and before I left I did have occasion to observe his condition with respect to the use of intoxicating liquors or beverages. And through that I did form an opinion as to whether he was under the influence of intoxicating liquors and I stated to him that he would be charged with that..."
"I observed a small laceration across the forehead of the defendant. I do not know how many stitches it took; it was very small, the laceration was about an inch and a half at most I would say. I didn't know that four stitches were taken, I didn't know how many stitches for the laceration across his forehead. It was bleeding... Well, his actions, having been around people for numerous years, in my opinion he was definitely under the influence of intoxicants and he was told at the hospital that he would be charged with that."
On the issue of whether there was a marked center line in the highway approaching the point of the collision, Guy Matthews, a State's witness, could not recall whether there was such a line. Jesse Willis testified: "The car lot is located on the left of Highway 78 going from here, on the south side. At that particular point, U.S. 78 runs in an east and west direction. It has two lanes at that point, one lane of travel in each direction. If I am not mistaken, those lanes were marked by a double line, yellow line, where the collision took place, because it was starting up a hill just as you leave the car lot, and if I am not mistaken there was a double yellow line."
Patrolman Dove gave as his evidence: "From the point of impact in the direction of Douglasville, east, there is a hill crest and a curve. There was yellow no-passing line in the center of the road for eastbound traffic, the direction in which the accused was going. The yellow line made an overlap for 30 feet, I would say, a double yellow line approximately 30 feet right at the point of impact."
The defendant testified there was no such line marked on the highway.
The account of the manner in which the collision occurred was related by State's witness, Guy Matthews and Jesse Willis. Guy Matthews testified he was at his place of business on the afternoon of the fatal event. "When I observed the Rambler station wagon, it was directly in front of my place. I observed the `54 Ford before I observed the Rambler station wagon. I first observed the `54 Ford about 200 feet away toward the west, toward Villa Rica... There were three vehicles in front of the `54 Ford when I saw it. The one in front was pulling into my place. The others were slowing down, waiting for him to pull in. As they did this I noticed the `54 Ford when it came in behind the third car and came out around on the other side of the road into the path of the Rambler. I mean by that it would be on the right side of the road from Douglasville. That `54 Ford is the motor vehicle driven by the accused, James Howard Geter. In approaching the point of impact the accused's `54 Ford was in Tuggle's lane. When I first observed the accused's car I would say its speed was approximately 55 miles per hour. I would say the cars that was stopped in front of my place was down to a maximum of 20 or 25 miles an hour. I couldn't say that from the point I saw the `54 Ford until it turned into the left lane of traffic its speed reduced any. In my opinion it was not...
"I would think that at the point of impact the car driven by the accused, Geter, was already past the car behind, the third car. It would be hard for me to say whether it was slightly in front of it. I believe the second car in front of Geter had already gone on at the point of impact...
"Where I was standing was on the opposite side of the road from the Rambler station wagon. Geter's car was. I would say, 200 feet away from my place when I observed it; it was. I would say, about 75 feet behind the third car in line when I first saw it. I would say the third car had slowed down maybe to 30 or 35 when I first saw it. The second car almost came to a stop, the third one didn't. I couldn't say how fast the Rambler was driving. At the time I first saw the Geter car it was going about 55 miles an hour, something like that, somewhere in the neighborhood. I wouldn't think he put on his brakes."
Jesse Willis testified: "I was employed by Mr. Guy Matthews on March 31. On that date I did have occasion to see a motor vehicle collision that occurred on U.S. 78 practically in front of Mr. Matthews' place of business. When the collision occurred, I was about I'll say 20 yards, something like that, 20 or 25 yards. I was standing inside the car lot, just off 78 highway...
"On that particular day, it was Saturday afternoon and the traffic was rather heavy, and we had a boy driving a car; they take them out and drive them and see if they are satisfactory; this boy was driving a `57 model Dodge and he carried it toward Villa Rica, and in the meantime a young lady came up and she was talking to us about a `55 model Ford, and Mr. Matthews and her and myself was standing about the center of the car lot, which would be 30 feet maybe, 30 or 40 feet, from the highway, the edge of the highway, and we saw this boy coming back with the Dodge. I saw him coming down the road and there were two cars behind him as he went to turn in. One of the cars was a pretty good distance behind him, and as he slowed up, one car put on its brakes and his tires made a squealing sound, you know, and I looked up and this `54 model green Ford was coming down the road at a pretty high rate of speed, and I knew he was going to hit something if he didn't slow down, I didn't know whether he was going to come through the car lot or hit those cars in the rear, or what, but I don't believe he ever made any attempt to put on his brakes, if he did I never heard it, he just swerved out from behind the third automobile and immediately hit this gentleman right here that was driving the Rambler station wagon head-on ...
"Yes, there were three cars in front of the '54 Ford, and a car behind him. The third car was a Mercury, about a `51 model Mercury. When I first saw the `54 Ford coming behind the Mercury. I suppose it was 50 yards at least, 55 or 60, from the Mercury, and was driving real fast...
"I would say that the `54 Ford was traveling at least 70 miles an hour. From my observation of that automobile from the time I first saw it until the impact with the automobile driven by Mr. Tuggle, I did not notice any reduction in speed. I never heard the brakes applied on either one of the automobiles. The '54 Ford was traveling to the east. When I first saw him he was traveling in his right-hand lane, the proper lane for east-bound traffic. As he approached the rear of the Mercury automobile, he come up pretty close behind it, about 15 or 20 feet. When he came up that distance behind the Mercury car, the third car, he just whipped out to the left in the other land, and when he whipped out he didn't travel but just a few feet around the Mercury, probably middle ways of it, and met the station wagon head-on."
The defendant testified to his version of the manner in which the collision occurred. He stated that he had followed the cars from a stop light in Villa Rica and when they began to stop he put on his brakes, saw that he couldn't stop, and to avoid hitting the car in front of him swerved into the left lane; that it had been raining causing his automobile to slide and that he did not see the station wagon prior to swerving into the other lane. Further, his sworn statement was that he told the officers truthfully that he drank one beer on the day before the accident and had nothing intoxicating to drink on the day it happened.
His witnesses, Richard Dobbs and Jerome Boyd, substantially corroborated his evidence, especially testifying that he had nothing intoxicating to drink, was entirely sober, and that they had been with him since the day before the collision occurred.
The first special ground of the motion for new trial complains that the judge charged the jury: "Now I charge you that the State contends that this defendant did violate two rules of the road, that is, he did kill the people charged in the bill of indictment because he did violate these rules of the road, or the law with reference to driving under the influence of intoxicating liquors, and if you believe that he did, that he is not guilty of murder but that he did kill one or more of the persons named in the bill of indictment in violation of any one or more of the rules charged in the bill of indictment and which I have read to you, then you would consider the question of whether he is guilty of involuntary manslaughter in the commission of an unlawful act. If you believe beyond a reasonable doubt that he was guilty of that crime, then it would be your duty to convict him."
The objection to the charge was that it was misleading "in that it tended to leave the impression upon the mind of the jury that if the defendant was guilty of the crime of involuntary manslaughter in the commission of an unlawful act, he should be convicted of murder."
The second special ground of the amended motion assigns as error the court's charge: "If, however, after considering all the facts and circumstances, all the evidence, there is in your minds a reasonable doubt as to his guilt of that offense, that is, involuntary manslaughter in the commission of a lawful act, it would be your duty to acquit him of that charge, as those are the only two possible charges contained in the bill of indictment. Whether the operation of the car in the manner in which it was operated at the time by the defendant was such as might produce such a consequence as the killing of a human being, and whether or not the defendant observed the necessary discretion and caution and circumspection are questions for you to determine from the facts and circumstances developed by the evidence. All of these things are matters for you to determine, and the court has not intended to leave any impression on you that it has any desire about who should prevail in the case, the State or the defendant, or what has or has not been proven in the case. That is for you to determine exclusively, and if I have inadvertently expressed any opinion or inadvertently left that impression upon you, you will disregard it. All of that is for you to determine; I have no preference in the case and no desire."
The plaintiff in error's objection to the charge was that it "unduly restricted the jury in its consideration of the evidence and tended to leave the jury with the impression that there were only two possible charges contained in the bill of indictment and that only two things were necessary for the jury to consider in arriving at their verdict, to wit, whether the operation of the car in the manner in which it was operated at the time by the defendant was such as might produce such a consequence as the killing of a human being, and whether or not the defendant observed the necessary discretion and caution and circumspection."
1. Where, as here, the evidence discloses that the defendant wilfully and wantonly violates statutes designed to insure the safety of the traveling public on the thoroughfares of the State and the natural and probable result of his conduct is to take human life, malice is implied, and if the infractions of the statutes cause the death of another the defendant may be found guilty of murder. Powell v. State, 193 Ga. 398 (1) ( 18 S.E.2d 678); Wallace v. State, 216 Ga. 180 (1), 182 (4) ( 115 S.E.2d 338); Code § 26-1009.
The evidence authorized the conclusion that the defendant willfully committed each of the offenses in the manner alleged in the indictment and killed the deceased as therein charged. There is no merit in the insistence that the verdict was without evidence to support it. Kemp v. State, 214 Ga. 558 (2) ( 105 S.E.2d 582), and cases cited therein.
In passing upon the sufficiency of the evidence we have considered the contention borne out by the record that the testimony of the State's witnesses was not altogether in harmony and some of them contradicted that of others concerning vital issues of the case, for instance: as to whether there was a marked center line on the highway and at the point where the collision occurred, and also as to whether the defendant was on the occasion driving under the influence of intoxicants. However, some of the State's witnesses, in some instances, corroborated by the defendant's witnesses and his own testimony, did furnish proof of every material allegation of the indictment. The discrepancies and conflicts in the evidence given by the witnesses is a problem which addresses itself to the jurors, "the doctors of doubt," in arriving at the truth of the case. Berry v. State, 10 Ga. 511 (8) ; Almand v. State, 149 Ga. 182, 184 (4) ( 99 S.E. 795).
Particularly applicable here is the pronouncement of Barber v. State, 3 Ga. App. 598, 600 ( 60 S.E. 285): "The fact that a witness introduced by the State testified in behalf of the defendant or at least testified to a state of facts which showed that the defendant could not be guilty of the offense charged, at the time and place with reference to which he was accused, is of no consequence after a verdict of guilty, if other evidence was introduced by the State sufficient to authorize conviction." One witness as to each fact necessary to make out a case submitted to the jury supports a verdict, although the testimony is contradicted by any number of other witnesses. Moseley v. City of Thomasville, 9 Ga. App. 500 (1) ( 71 S.E. 765); Hayslip v. Liberty Mut. Ins. Co., 72 Ga. App. 509 (1) ( 34 S.E.2d 319).
2. Grounds 1 and 2 of the amended motion for new trial attack the judge's charge as being confusing and unduly restricting the consideration of the jury to particular issues of the case to the exclusion of other material issues. The charge, read as a whole, is not confusing but was a clear enunciation of the law of the case, and gave full and fair instructions as to every issue of the case. The time honored rule of practice is observed: "An exception to an excerpt from a charge because of incompleteness of statement of a particular legal proposition is not good when the incompleteness is supplied in appropriate context by the general charge." Spence v. Morrow, 128 Ga. 722 (2) ( 58 S.E. 356). "Where an excerpt from a charge isolated from its context appears to be confusing, but, when construed with the remainder of the charge, is plain and explicit, a ground of a motion for new trial that segregates the excerpt from the whole charge and attacks it as misleading or confusing is without merit." Glover v. Maddox, 98 Ga. App. 548 (7) ( 106 S.E.2d 288). See City Council of Augusta v. Tharpe, 113 Ga. 152 (2) ( 38 S.E. 389) ; Central of Ga. R. Co. v. Cole, 135 Ga. 72 (2) ( 68 S.E. 804).
Judgment affirmed. All the Justices concur, except Head, P. J., and Mobley, J., who dissent.
The uncontradicted evidence for the State shows that immediately preceding the collision which resulted in the death of the deceased the first of four cars (the fourth car being the one operated by the defendant) slowed down or stopped to turn off the highway. Guy Matthews, a witness for the State, testified in part on direct examination: "My place of business and the highway in front of it is all in Douglas County. The spot where the collision occurred is in Douglas County. There were three vehicles in front of the `54 Ford [the car operated by the defendant] when I saw it. The one in front was pulling into my place. The others were slowing down, waiting for him to pull in. As they did this I noticed the '54 Ford when it came in behind the third car and came out around on the other side of the road into the path of the Rambler [the car occupied by the deceased.]" On cross-examination the witness testified in part: "Frank Ellison's car was on the highway just before the accident, followed by three cars, the third of which was the defendant's vehicle. Frank Ellison's car slowed up to pull into my used car lot, and the other car behind him was also slowing up, before the defendant's car went around either one of them or attempted to go around either one of them. At the time of the impact I would say his entire car was across the center line."
Jesse Willis, the other eye-witness who testified for the State, testified in part on direct examination: "I saw him [Frank Ellison] coming down the road and there were two cars behind him as he went to turn in. One of the cars was a pretty good distance behind him, and as he slowed up, one car put on its brakes and his tires made a squealing sound, you know, and I looked up and this `54 model green Ford was coming down the road at a pretty high rate of speed, and I knew he was going to hit something if he didn't slow down, I didn't know whether he was going to come through the car lot or hit those cars in the rear, or what, but I don't believe he ever made any attempt to put on his brakes, if he did I never heard it, he just swerved out from behind the third automobile and immediately hit this gentleman right here that was driving the Rambler station wagon head-on. I never seen nothing like that before."
The testimony of these two witnesses for the State shows that the defendant was confronted with an emergency not resulting solely from his own acts, and presents the theory of accident based upon an error in judgment by the defendant. The trial judge properly charged the jury on accident. Under these facts it is my view that, while a verdict of manslaughter would have been authorized (under other testimony in the case), there is a total failure of facts to show such a wanton and wilful disregard for human life as to authorize a presumption of malice. Myrick v. State, 199 Ga. 244, 248 ( 34 S.E.2d 36). Since there can be no murder without malice, either express or implied, Wallace v. State, 216 Ga. 180 ( 115 S.E.2d 338), neither of which appears from any direct testimony, or from any inference supported by the testimony, the verdict for murder was, in my opinion, wholly unauthorized, and the defendant's motion for a new trial on the general grounds should have been granted.
I am authorized to say that Mr. Justice Mobley concurs in this dissent.