The defendant was indicted, tried, and convicted of the murder of a policeman in Fulton County, Georgia. The indictment was in two counts, the first alleging that the defendant made an assault with an automobile, "the same being a weapon likely to produce death," with malice aforethought, upon the deceased who was riding a motorcycle upon a public highway of Fulton County, thereby knocking the deceased to the ground and inflicting the wounds from which he died; and the second count alleging that the accused did kill the deceased without any intention of doing so, but maliciously in the commission of an unlawful act by operating an automobile under the influence of intoxicants and at a greater rate of speed than 60 miles per hour by knocking the deceased from the motorcycle on which he was riding on a certain highway in the corporate limits of the City of Atlanta of said Fulton County, thereby inflicting the wounds from which he died. Demurrers were filed to count II, and after a hearing overruled. Exceptions are taken to this ruling and to a later ruling denying a motion for new trial as amended, containing 10 special grounds. Held:

Nor is there any merit in special ground 1 of the amended motion for new trial, complaining that the jury should not have been allowed to consider count II for the same reasons argued above; or special grounds 7 and 8, which allege that the indictment attempted to charge different offenses of murder under Code 26-1009 and 26-1002. As murder is the same under both Code sections whether it is done with or without the intention to kill, and there can be no murder without malice, there is no merit in any of these grounds.

2. While the two counts of the indictment charge murder with intent to kill and murder without the intent to kill, the jury had ample evidence to support its verdict under count II, since it showed that the defendant committed the crime in the commission of unlawful acts which naturally tend to destroy human life, and death resulted therefrom. Nor did the failure to return a verdict of guilty on count I require an acquittal on count II, as argued by counsel for the movant, and the general grounds of the motion for new trial are without merit.

4. Complaint is made of the excerpt from the charge of the court that a presumption of malice may arise from a reckless disregard for human life, and that a wanton and reckless state of mind is sometimes the equivalent of a specific intent to kill, because it was inapt, not a correct principle of law, not adjusted to the issues, and prejudicial to the accused. The charge is an apt and correct principle of law as to implied malice, and is not subject to any of the grounds of complaint. See Myrick v. State, 199 Ga. 244 (34 S. E. 2d 36). This ground of the amended motion is without merit.

5. Objection was made to a certain statement of the solicitor in a colloquy between the court and counsel in regard to the relevancy of a blood test of Cecil Andrew Cooper, who was jointly indicted with the accused, but who was not on trial in this case. In answer to a query by the court, the solicitor stated that the State contended a conspiracy existed between Cooper and the defendant, and any act of one of the parties is relevant to the case, and that he intended to show this codefendant was also drunk at the time of the accident. Objections were made that this statement was harmful and prejudicial, and was a ground for a mistrial, a motion being made therefor and denied. Special ground 5 complains of the failure of the court to grant the mistrial or rebuke the solicitor for making such improper remark. The remark was made in answer to the court's question, nor was it harmful or prejudicial for the solicitor to state the contentions of the State, and no rebuke was necessary. There is no merit in this ground.

6. Since the jury did not return a verdict on count I, the alleged failure of the judge to advise the jury, after he had read count I, that the accused had entered a plea of not guilty thereto, if erroneous, could not be said to have been harmful to the accused, and the court did charge, after reading both counts, that the accused pleaded not guilty to both counts. There is no merit in this ground.

7. For the foregoing reasons the court did not err in overruling the demurrers and in refusing to grant a new trial.