lawskills
Loading
Did you know you can download our entire database for free?


Resources
[more] 

Georgia Caselaw:
Browse
Greatest Hits

Georgia Code: Browse

(external) Findlaw Georgia Law Resources


This site exists because of donors like you.

Thanks!


Lawskills.com Georgia Caselaw
WALTERS v. THE STATE.
35215.
Indictment for involuntary manslaughter. Before Judge Andrews. Fulton Superior Court. March 29, 1954.
GARDNER, P. J.
The trial court correctly overruled the demurrers, both general and special.
The grand jury of Fulton County returned an indictment against the defendant, charging him with involuntary manslaughter, a felony. The defendant, when called upon to plead to the indictment, filed general and special demurrers, which the court overruled. On this judgment he assigns error.
On account of the nature of the indictment and the demurrers thereto, we think it necessary to set forth the material allegations of the indictment as well as the demurrers. The indictment, omitting the formal parts, charges that, on June 27, 1953, the defendant did: "Unlawfully, and without any intention to do so kill Charles E. Harbin, while accused was engaged in the commission of an unlawful act, which might probably produce such a consequence, in an unlawful manner; in that,
"Accused did drive and operate an automobile along and upon Capitol Avenue at the intersection of Atlanta Avenue, both being public streets and highways in the City of Atlanta, Georgia, and said intersection being within the corporate limits of sad City of Atlanta, Georgia, and did violate the law in the following respects:
"(a) Accused did drive and operate said automobile along and upon Capitol Avenue, between the intersection of said Capitol Avenue with Vanira Street and the intersection of Capitol Avenue and Atlanta Avenue, a point on said street within the inner speed zone of the City of Atlanta, Georgia, at a greater rate of speed than twenty-five (25) miles per hour, in violation of a lawful ordinance of the City of Atlanta, Georgia, which provided as follows:
" 'Chapter 88 City of Atlanta Traffic Ordinance as amended June 4th, 1952. Except as otherwise specifically provided by ordinance, the City of Atlanta shall be divided into two speed zones. The inner zone shall consist of the area included within a circle, whose radius is 2 1/2 miles centered on the intersection of Peachtree and Marietta Streets at Five Points. The outer zone shall consist of all the area of the City of Atlanta except the area included within the inner zone. It shall be unlawful for any person to drive a motor vehicle within the inner zone at a rate of speed in excess of 25 miles per hour nor within the outer zone at a rate of speed in excess of 35 mles per hour unless a higher rate of speed has been specifically authorized for the particular street by an appropriate ordinance.'
"A higher rate of speed not having been specifically authorized by an appropriate ordinance of the General Council of the City of Atlanta, for Capitol Avenue between Vanira Street and Atlanta Avenue.
"(b) Accused did drive and operate said automobile along and upon Capitol Avenue and when approaching said intersection of Atlanta Avenue did fail to yield the right of way to an automobile then traveling in said intersection on Atlanta Avenue, in violation of a lawful ordinance of the City of Atlanta, Georgia, which provided as follows.
" 'Section 88-918. Traffic Ordinance: The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different street.'
"And as a result of the above described unlawful manner of operating said automobile, accused did with said automobile strike, hit, run into, and collide with an automobile then being driven by the said Charles E. Harbin in said intersection, thereby causing injuries, wounds and bruises upon the person of the said Harbin from which he died; all of said acts of accused being done without using due caution and circumspection and being contrary to the laws of said State, the good order, peace and dignity thereof."
The demurrers, filed November 23, 1953, read: "1. That the defendant demurs generally to the indictment and moves to quash the same on the grounds that this said indictment states no indictable offenses against this defendant.
"2. The defendant generally demurs to the indictment upon the grounds that the said indictment is predicated upon a city ordinance and that the said purported ordinance of Section 68-303 of the Code of Georgia 1933, and that the said purported ordinance is therefore unconstitutional, null and void for the reason that it conflicts with Article 1, Section 4 of the Constitution of Georgia (Code Section 2-4010) wherein it provided that laws of a general nature shall be of uniform operation throughout the State and that no special law shall be enacted in any case where provision has been made by an existing general law.
"3. The defendant generally demurs to the indictment upon the grounds that the purported city ordinances are null and void and unconstitutional in that it delegates legislative authority to the city engineer.
"4. The defendant demurs generally to the indictment upon the grounds that the purported city ordinance is not quoted in its entirety and this defendant is unable to determine from the said indictment what he is called upon to defend.
"5. The defendant specially demurs to the indictment to paragraph 1 on the grounds that it is a conclusion without any facts to substantiate the allegation in this paragraph or elsewhere in the said indictment.
"6. The defendant specially demurs to indictment of paragraph 2 upon the grounds that it is vague and indefinite in that it does not state in which direction the accused was traveling on Capitol Avenue nor does it state in which direction the deceased, Charles E. Harbin was traveling and it is so vague and indefinite that this defendant is unable to determine what he is called upon to defend and upon further grounds that it is a conclusion without facts to substantiate the allegation of the said paragraph or elsewhere in the said indictment.
"7. The defendant specially demurs to paragraph 3 of the indictment upon the grounds that it is a conclusion without any facts to substantiate the said allegation in the said paragraph or elsewhere in the said indictment.
"8. The defendant specially demurs to the city ordinance: 'Chapter 88 City of Atlanta Traffic Ordinance as amended June 4, 1952. Except as otherwise specifically provided by ordinance, the City of Atlanta shall be divided into two speed zones. The inner zone shall consist of the area included within a circle, whose radius is 2 1/2 miles centered on the intersection of Peachtree and Mariefta Streets at Five Points. The outer zone shall consist of all the area of the City of Atlanta except the area included within the inner zone. It shall be unlawful for any person to drive a motor vehicle within the inner zone at a rate of speed in excess of 35 miles per hour unless a higher rate of speed has been specifically authorized for the particular street by appropriate ordinance.' upon the grounds that the purported city ordinance is not quoted in its full and its entirety and upon further grounds that the said city ordinance is inadequately quoted and it is so vague and indenifite this defendant does not know what he is called upon to defend and he asks that the said portion of the city ordinance as quoted be expunged and deleted from the indictment upon the ground that purported city ordinance is inadequately quoted and he does not know what he is called upon to defend.
"9. The defendant specially demurs to the said city ordinance on the grounds that there is no such ordinance in the Atlanta Traffic Code and he requests that the said portion of this indictment be expunged and deleted because there is no such code section in Atlanta Traffic Code.
"10. The defendant specially demurs to the paragraph 6 of the indictment upon the grounds that it is a conclusion without any facts to substantiate the allegation in the said paragraph or elsewhere in the indictment.
"12. The defendant specially demurs to paragraph 8 of the indictment upon the grounds that it is a conclusion without any fact to substantiate the said allegation in the said paragraph or elsewhere in the said indictment and defendant specially demurs to the portion of paragraph 8 which reads as follows:
" 'And as a result of the above described unlawful manner of operating said automobile, accused did with said automobile strike, hit, run into, and collide an automobile then being driven by the said Charles E. Harbin in said intersection, thereby causing injuries, wounds and bruises upon the person of the said Harbin from which he died; all of said acts of accused being done without using due caution and circumspection and being contrary to the laws of said State, peace and dignity thereof.'
"It is a conclusion without any facts to substantiate the allegation in the said paragraph or elsewhere in the said indictment and move that the said paragraph be stricken and expunged from the indictment."
On December 18, 1953, by permission of the court, the defendant filed amendments to his demurrers as follows:
"1. By amending General Demurrer No. 2 by inserting in line 4 between the words 'of' and 'Section' the following words: 'Section 68-301', and when amended shall read as follows:
" 'The defendant generally demurs to the indictment upon the grounds that the said indictment is predicated upon a city ordinance and that the said purported ordinance is contrary to and in conflict with the provisions of Section 68-301 and Section 68-303 of the Code of Georgia 1933, and that the said purported ordinance is therefore unconstitutional, null and void for the reason that it conflicts with Article 1, Section 4 of the Constitution of Georgia (Code Section 2-401) wherein it provided that laws of a general nature shall be of uniform operation throughout the State and that no special law shall be enacted in any case where provision has been made by an existing general law.'
"3. The defendant specially demurs to subparagraph (a) in the indictment upon the grounds that it is vague and indefinite, in that it does not state what speed this said defendant was operating his said automobile at the time and place of the accident.
"The defendant specially demurs to subparagraph (a) of the indictment beginning on the second line 'a point on said street within the inner speed zone of the City of Atlanta, Georgia, at a greater speed or rate of speed than twenty-five (25) miles per hour', upon the grounds that it is vague and indefinite, in that it does not state where the inner zone begins and ends, and also upon the ground that it is a conclusion without any facts to substantiate the said allegation in the said subparagraph (a) or elsewhere in the said indictment."
Paragraphs 3, 4, 8, 9, and 11 of the defendant's demurrers of November 23, 1953, quoted above, are speaking demurrers and present no legal authority for quashing the indictment. In Cole v. State, 68 Ga. App. 179 (22 S. E. 2d 529), this court said: "A speaking demurrer is one which alleges some new matter, not disclosed by the pleading [indictment] against which the demurrer is aimed and not judicially known or legally presumed to be true. Such a demurrer presents no question for decision, and should never be sustained." See also Arthur v. State, 146 Ga. 827 (2) (92 S. E. 637). In Jackson v. State, 64 Ga. 344 (1), the Supreme Court said: "An indictment is not demurrable for any matter dehors the pleadings and the record." See also Walker v. State, 73 Ga. App. 20, 21 (35 S. E. 2d 391). These demurrers have no merit in view of the authorities cited.
Regarding ground 1 of the demurrer, this court held in Wells v. State, 44 Ga. App. 760 (1) (162 S. E. 835), as follows: "The essential elements of the offense of involuntary manslaughter in the commission of an unlawful act are, first, the intentional commission of an unlawful act, and, second, the killing of a human being without having so intended, but as the proximate result of such intended act."
This court held in Hayes v. State, 11 Ga. App. 371, 375 (75 S. E. 523), as follows: "An unlawful act within the meaning of our statute [26-1009] is an act prohibited by law, that is to say, an act condemned by some statute or valid municipal ordinance of this State." This position of the defendant, as set forth in ground 1 of the demurrers, is without merit.
Paragraph 2 of the demurrer as amended attacks the validity of the ordinances involved under this record, alleging that such ordinances are unconstitutional because such ordinances violate article I, section IV of the Constitution of Georgia. There is no conflict or inconsistency between the legislative acts limiting the speed of automobiles and the ordinances here in question. There is nothing to the contrary in Jenkins v. Jones, 209 Ga. 758 (75 S. E. 2d 815), or in Giles v. Gibson, 208 Ga. 850 (69 S. E. 2d 774), or in Bibb County v. Garrett, 204 Ga. 817 (51 S. E. 2d 658), or in Snipes v. Houlihan, 81 Ga. App. 492 (59 S. E. 2d 253). See Sims v. Martin, 33 Ga. App. 486, 488 (10) (126 S. E. 872), wherein it is said: "The ordinance of a city penalizing a less speed than is penalized by the statute of the State is merely supplemental to the statute." We might also mention here that the legislative acts regulating the speed of motor vehicles within the State specifically authorize municipalities to regulate traffic within the municipal limits. See Code 68-301, 68-303, and 68-312. The decisions of Gore v. State, 79 Ga. App. 696 (54 S. E. 2d 669), Lancaster v. State, 83 Ga. App. 746 (64 S. E. 2d 902), and Howard v. State, 151 Ga. 845 (108 S. E. 513) are not contrary to what we are here holding.
We have read this indictment carefully in the light of the general and special demurrers of the defendant, and wish to state that it is well drawn. It correctly and distinctly sets forth the offense of involuntary manslaughter in the commission of an unlawful act. The ordinances in question are clear and specific. We know of no other municipality which has better marked street intersections than the City of Atlanta. The contentions of the defendant that the city officials delegated its ordinance-enacting powers to the traffic engineer are not meritorious. He was but marking for the city, under power given by a valid ordinance, said traffic signs under the direction of the city officials. None of the general or special demurrers is clothed with any merit, and the trial court properly overruled them.
Paul Webb, Solicitor-General, Charlie O. Murphy, contra.
Barrett & Hayes, Clinton Cox, Otis C. Bell, for plaintiff in error.
DECIDED JULY 8, 1954.
Saturday May 23 03:53 EDT


This site exists because of donors like you.

Thanks!


Valid HTML 4.0!

Valid CSS!





Home - Tour - Disclaimer - Privacy - Contact Us
Copyright © 2000,2002,2004 Lawskills.com