POWELL v. THE STATE

Supreme Court of Georgia1942-01-15No. No. 13881

193 Ga. 398

Summary · law.co

Holding. The judgment of conviction for murder is affirmed. The defendant's operation of an automobile in violation of traffic laws while intoxicated, resulting in a fatal collision, constitutes murder under the statute providing that unlawful killings during the commission of acts naturally tending to destroy human life shall be deemed murder.

The defendant was convicted of murder resulting from a fatal automobile collision. The case involved a nighttime collision on a public highway where the defendant was operating his vehicle illegally—driving without lights, on the wrong side of the road, and while intoxicated. Under Georgia law, an involuntary killing occurring during the commission of an unlawful act that naturally tends to destroy human life constitutes murder rather than simple involuntary manslaughter, with the jury determining whether the unlawful conduct naturally tends to cause death.

The defendant challenged the conviction on the ground that it rested entirely on circumstantial evidence and therefore required a jury instruction on the law governing circumstantial evidence. The court rejected this argument, finding that substantial direct evidence supported the conviction. The record contained direct testimony that the defendant drove the vehicle involved in the collision, direct evidence of specific traffic law violations (driving without lights and on the wrong side of the road), and the court took judicial notice that darkness had fallen at the time of the accident, establishing that the defendant was required by law to have his lights on. Accordingly, the conviction did not depend solely on circumstantial proof.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether operation of a motor vehicle in violation of traffic laws while intoxicated, resulting in death, constitutes murder or involuntary manslaughter
Whether a conviction based partly on circumstantial evidence requires an instruction on circumstantial evidence absent a request
Whether sufficient direct evidence existed to establish the defendant's illegal operation of the vehicle

Procedural posture

The defendant appealed his murder conviction, challenging the trial court's failure to instruct the jury on the law of circumstantial evidence and contending that his conviction depended entirely on circumstantial proof.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Beid, C. J.

Ordinarily to kill a human being without any intention to do so is involuntary manslaughter, which may be a crime if done in the commission of an unlawful act, or if done in the commission of a lawful act, but without due caution and circumspection; but “where such involuntary killing shall happen in the commission of an unlawful act which, in its consequences, naturally tends to destroy the life of a human being, . . the offense shall be deemed and adjudged to be murder.” Code § 26-1009. Whether such an unlawful act is one that naturally tends to destroy a human life is a question of fact to be determined by a jury. Thus, while an automobile is not per se a deadly weapon, it may be so operated as to destroy human life; and if the driver of an automobile operates it in violation of the law, and the unlawful manner of operation is such as the jury may find naturally tends to destroy human life, a homicide resulting from such operation may be adjudged to be murder. Butler v. State, 178 Ga. 700 (173 S. E. 856); Jones v. State, 185 Ga. 68 (194 S. E. 216); Meadows v. State, 186 Ga. 592 (199 S. E. 133).

The only special ground of the motion for new trial assigns error upon the failure of the judge to charge the jury upon the law of circumstantial evidence. It is contended, not that there was a request so to charge, but that the conviction depended entirely upon circumstantial evidence, and for this reason such an instruction was required. The contention is that the various statutes which the State sought to prove had been violated by the defendant relate to the operation of motor vehicles on public highways; that the evidence as to the nature and character of the road along which both parties were traveling was wholly circumstantial, and the defendant’s conviction was consequently wholly dependent upon circumstantial evidence. It is strongly urged that the proof as to the intoxicated condition of the defendant was entirely cir eumstantial; and that even if there had been direct evidence of drunkenness, there was no direct evidence that the defendant operated his automobile upon a public highway while intoxicated or under the influence of intoxicants. The statutes regulating the operation of motor vehicles variously refer to the “highways” and the “public highways” of the State. A highway is a public road, and the terms “highways” and “public highways” as used in these statutes mean “public roads” as distinguished from private ways. The meaning is not confined to the public highways which form the State highway system. Southern Ry. Co. v. Combs, 124 Ga. 1004 (53 S. E. 508); Schlesinger v. Atlanta, 161 Ga. 148, 159 (129 S. E. 861). While there was no direct evidence that the collision which resulted in the death of the decedent occurred on a State highway, unless we should take judicial notice that the BeeLine Highway is a part of the State system, there was direct and positive evidence that the collision took place on a highway. There was also direct proof that the defendant was driving without lights, and that he drove his car on the wrong side of the road and into the car of the decedent, in violation of the Code, § 68-303. It is strongly contended by able counsel for the defendant that there was no direct evidence that the collision occurred at night. The driver of the decedent’s car testified that the collision took place about 7:30 p. m. on March 16, 1941, and that it was getting dark. Whether or not this proof directly established that the collision occurred at night, and whether or not we should judicially know that it was dark in Johnson County, Georgia, at 7:30 p. m. Eastern Standard Time, on March 16, 1941, the court does take judicial notice of the time of the setting of the sun; and that at the time of the collision here involved, it was more than a half-hour after sunset. Accordingly, the defendant was required by the act of 1939 (Ga. L. 1939, pp. 295, 303) to have his car lighted. In view of the direct proof of illegal operation of the automobile by the defendant, and the direct and undisputed evidence that he actually drove the car which collided with that of the decedent, it can not be said that the conviction was dependent solely upon circumstantial evidence, or that the court’s failure to charge on the law of circumstantial evidence without a request was error.

The evidence fully authorized the jury to find that the defendant was operating his car along a public highway in violation of the statutes referred to in the foregoing divison of the opinion, and that he was in a drunken condition as he did so. The verdict can not be set aside on the general grounds of the motion for a new trial.

Judgment affirmed.

All the Justices concur except Atkinson, P. J., who dissents.