Huntsinger v. State , 200 Ga. 127 ( 1945 )

I concur in the judgment of reversal in this case, but do not concur in the reasons therefor as stated in the opinion.

The evidence in this case shows no specific intent to kill. There are two instances where an involuntary killing may be murder, to wit:

(a) Where the killing happened in the commission of an unlawful act which in its consequences naturally tends to destroy human life, as set forth in the Code, § 26-1009, defining involuntary manslaughter but expressly providing that if the killing occurs under the foregoing circumstances it will be deemed and adjudged to be murder. Leonard v. State, 133 Ga. 435 (5) (66 S.E. 251); Gadsden v. State, 134 Ga. 785 (2) (68 S.E. 497); Josey v. State, 137 Ga. 769 (4) (74 S.E. 282); Ashford v. State, 144 Ga. 832 (3) (88 S.E. 205);Davis v. State, 153 Ga. 154 (112 S.E. 280).

(b) Where the conduct of the accused is such as to show a wanton and reckless state of mind which would be the equivalent of a specific intent to kill. Myrick v. State, 199 Ga. 244 (34 S.E.2d 36), and citations.

In either of the foregoing two instances, the conduct of the accused would amount to the same as a specific intent to kill; and, where such conduct was the proximate cause of the killing, malice would therefore be implied under the provisions of the Code, § 26-1004, defining implied malice.

Under the instance (a), above stated, the mere fact that the act causing the homicide was unlawful, standing alone, would not authorize a verdict of murder. It would be involuntary manslaughter. For the unlawful act to increase the crime from involuntary manslaughter to murder, it must be, not only unlawful, but an act which naturally tends to destroy human life. As applied to a homicide caused by driving a motor vehicle at an illegal rate of speed, whether the speed of the car in excess of the legal limitation would be an act which naturally tends to destroy human life, and would authorize a conviction of murder, would depend upon the circumstances under which the act was done. While, as above stated, the mere fact that a violation of the speed limitation was the proximate cause of the homicide, would not be murder but involuntary manslaughter — however, in determining whether the acts of the accused were sufficient to increase the crime to that of murder, consideration must also be given to other facts, such as the nature of the road, the amount of vehicles and pedestrians thereon, the amount of excess speed, the condition of the car being driven, and other like circumstances. To amount to murder, the facts must show a condition from which the accused could reasonably apprehend that his act of violating the speed limit was, under the circumstances, such an act as naturally tended to destroy human life.

Whether the unlawful act of driving a motor vehicle in excess of the speed limit is such an act as naturally tends to destroy human life, becomes a matter of fact for the jury to determine under all the circumstances. But, before the crime can be increased from involuntary manslaughter to murder, the evidence must disclose, in addition to the illegal rate of speed, facts which would authorize the jury to find the circumstances to have been such as to show that the accused should reasonably have apprehended that he was doing an illegal act naturally tending to destroy human life.

The same principle would apply where a homicide was caused by skidding on to the shoulders of a road, and where the prohibited speed was the proximate cause of the skidding. It would be murder only when the excessive speed caused the skidding, and where such speed was under circumstances (considering the nature of the road and other conditions as above stated) which should have been reasonably apprehended as being an act naturally tending to destroy human life.

Under the instance (b), above stated, there is one marked distinction from the instance (a), heretofore discussed. Under (a) the act must be unlawful, but under (b) the act need not be unlawful, but an act such as to show a wanton and reckless state of mind which would be the equivalent of a specific intent to kill. As applied to a homicide caused by driving a motor vehicle, it is not necessary, in order for the homicide to be murder, that the accused be operating the same illegally, or in excess of the speed limit. It may be driven without violating any law, and yet if it be wilfully operated in such a manner as to show a wanton and reckless state of mind equivalent to a specific intent to kill, it would be murder and not involuntary manslaughter.

Involuntary manslaughter in the commission of a lawful act (Code, § 26-1009) may also be applicable where a homicide is caused by the operation of a motor vehicle. This section provides that involuntary manslaughter may be so committed by a "lawful act, which probably might produce such a consequence, in an unlawful manner;" and, under section 26-1010, punishment for this grade of involuntary manslaughter applies only "where there has not been observed necessary discretion and caution." The Code, § 26-404, in defining misfortune and accident, provides that in such cases it must satisfactorily appear there was no "culpable neglect." Therefore, even though the vehicle is driven legally, and a homicide occurs, it would be involuntary manslaughter in the commission of a lawful act, if the proximate cause of the homicide was the failure of the accused to exercise the necessary discretion and caution and he was guilty of culpable neglect. This grade of homicide is based upon the omission of an act, as distinguished from murder and involuntary manslaughter in the commission of an unlawful act, each of which is based upon the wilful commission of some act that is the proximate cause of a homicide.

Applying the foregoing principles to the instant case, the facts show that the proximate cause of the homicide was the wilful operation of the automobile at an illegal rate of speed; but there are no other sufficient concomitant circumstances disclosed by the evidence which would have authorized the jury to find that the accused could have reasonably apprehended that his act of violating the speed limit was such an act as naturally tended to destroy human life, or which showed a reckless state of mind equivalent to a specific intent to kill; and accordingly a verdict of guilty of murder was not authorized.