1. Where a homicide occurs by the use of a motor vehicle, and no specific intent to kill is shown, a conviction of murder can not be sustained unless the evidence shows the act of the accused to be an unlawful act which in its consequences naturally tends to destroy human life, or that the conduct of the accused is such as to show a wanton and reckless state of mind; which, in either case, would be the equivalent of a specific intent to kill.
2. Evidence referred to in the corresponding division of the opinion should have been excluded. *Page 767
3. It is not error to fail to charge, upon request, a principle which is covered by other portions of the charge.
4. The portion of the charge in the corresponding division of this opinion was error.
No. 16474. FEBRUARY 16, 1949. Walter E. Park was convicted of murder with a recommendation to mercy, for a homicide occasioned by a motor-vehicle wreck on the public highway between Jackson and Indian Springs at about one a. m. on August 1, 1948. Prior to the wreck in question a pick-up truck traveling from Indian Springs towards Jackson went off the highway on the east side of the road, was damaged, and shortly thereafter two State patrolmen, and the deceased with a wrecker truck, arrived on the scene. After the wrecker truck had pulled the pick-up truck onto the road, and while the deceased was adjusting the chains between the rear of the wrecker and the front of the pick-up truck so that the pick-up truck could be pulled away, the accused ran into the rear of the pick-up truck, knocking it against the deceased, who was killed, and injuring the accused.
The evidence shows that at the time of the wreck the wrecker and the pick-up truck, which was immediately behind, were both facing north and both were on the paved portion of the highway and on the east, and thus on the right side of the highway. The patrol car was parked about thirty or forty feet south of the two trucks, off the paved portion of the highway facing in the opposite direction from the two trucks, and on the right side of the highway according to the way it was facing. The accused approached from the south, which caused him to have to pass where the patrol car was parked before reaching the two trucks. The patrol car had its parking lights on, and also a red blinking light which was attached to the left front fender. The road was such that this red blinking light could have been seen for a distance of six or seven hundred feet. There was no light on the rear of the pick-up truck. On the rear of the wrecker, and about seven or eight feet high, there were two white lights angled at about forty-five degrees towards the ground, which was for the purpose of throwing a light to the front of the pick-up truck, in *Page 768 order to connect a chain from the rear of the wrecker to the front of the pick-up truck.
One of the patrolmen testified that he saw the accused approaching for a distance of about three hundred feet, and he sought to stop him by waiving his flashlight. The accused was approaching at approximately thirty-five miles per hour, and maintained this speed up until he ran into the rear of the pick-up truck.
There was evidence that the accused was under the influence of whisky. One of the patrolmen, H. W. Barrow, so testified, and that there was a bottle containing about one inch of whisky found in the locked glove compartment, and a broken bottle on the floor which smelled of whisky. Sheriff J. D. Pope, who was a brother-in-law of the deceased, testified that he saw the accused while in an ambulance, and that "He was drunk. I smelled whisky on him." There was also testimony of B. L. Lumus: that about three-quarters of a mile before reaching the scene of the wreck, and while driving in that direction, the accused passed him; that as he passed he forced another car, which was approaching from the other direction, off the highway; that at this time the witness was traveling at about twenty-five miles per hour and the accused at about thirty-five miles per hour; and that at the time of the wreck he was about one hundred and twenty-five yards behind the accused.
In his statement the accused admitted that he had taken one drink. Witnesses for the accused testified, in effect, that he was not intoxicated a few minutes before the wreck, and other witnesses testified that the whisky and the whisky bottle in the car were left there by them without the knowledge of the accused. There was also evidence that by reason of a head injury in youth the accused was mentally defective, and he was discharged from the Army for that reason. (After stating the foregoing facts.) 1. There can be no murder without the intent to kill. *Page 769 The evidence in this case shows no specific intent to kill, and in the absence of showing such intent there could be no murder unless the evidence was sufficient to bring the case within one of the two provisions of our law wherein a person may be guilty of murder, with malice implied under the Code, § 26-1004, even though no specific intent to kill is shown.
An involuntary killing may be murder 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 (66 S.E. 251);Gadsden v. State, 134 Ga. 785 (68 S.E. 497); Josey v.State, 137 Ga. 769 (74 S.E. 282); Ashford v. State,144 Ga. 832 (88 S.E. 205); Davis v. State, 153 Ga. 154 (112 S.E. 280). Under this provision of our law, 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 in the commission of an unlawful act. 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 while under the influence of intoxicating liquors, whether such would be an act which naturally tends to destroy human life would depend upon additional concomitant circumstances to show the conduct to be such an act, and that the accused could reasonably apprehend that the act of so driving while intoxicated was, under all the circumstances, such an act as naturally tended to destroy human life.
The other instance where an involuntary killing could be murder is where the wilful and intentional 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. Collier v. State, 39 Ga. 31 (99 Am. D. 449); Marshall v. State,59 Ga. 154; Gallery v. State, 92 Ga. 463 (17 S.E. 863);Cook v. State, 93 Ga. 200 (18 S.E. 823); Smith v.State, 124 Ga. 213 *Page 770 (52 S.E. 329); Hamilton v. State, 129 Ga. 747 (59 S.E. 803);Josey v. State, 197 Ga. 82 (28 S.E.2d 290); Myrick v.State, 199 Ga. 244 (34 S.E.2d 36). Under this provision of our law, the conduct showing a wanton and reckless state of mind need not necessarily be unlawful.
The two above-stated principles of law are basic and fundamental and are the only instances under which a person can be convicted of murder where the evidence does not show a specific intent to kill. It would serve no useful purpose to cite and discuss previous cases decided by this court wherein there has been an unintentional killing by the operator of a motor vehicle. Most, if not all of them, are cited or discussed inHuntsinger v. State, 200 Ga. 127 (1) (36 S.E.2d 92);Smith v. State, 200 Ga. 188 (36 S.E.2d 350), andJackson v. State, 204 Ga. 47 (48 S.E.2d 864). Suffice it to say that the evidence in the instant case was sufficient to authorize the jury to find that the proximate cause of the homicide was the operation of the motor vehicle by the accused while under the influence of intoxicating liquors, and that a verdict of involuntary manslaughter in the commission of an unlawful act would have been authorized. But there were no other sufficient concomitant circumstances disclosed by the evidence which, when considered in connection with the fact that the accused was driving while intoxicated, would show it was such an act as naturally tended to destroy human life, and that such could be reasonably apprehended by the accused. Nor does the record disclose any wilful and intentional acts that show a wanton and reckless state of mind on the part of the accused such as would be the equivalent of a specific intent to kill. Patrolman Barrow, a witness for the State, who was standing near the patrol car waving a flashlight, testified that he saw the defendant some two or three hundred feet down the road before the accident, and he was approaching "at a very reasonable rate of speed and . . did not attract much attention. There was nothing bad about his driving at that time to attract my attention. He appeared at that time to be driving and operating his car in a perfectly normal manner. . . I didn't anticipate that anything was going to happen." It was undisputed that the pick-up truck which was struck from the rear had no tail light. The failure *Page 771 of the accused to stop on account of the red blinker light or the waving of the flashlight, both of which were on the left side of the road to him, are the only facts which could be taken along with the fact of intoxication, that could tend to illustrate a wanton and reckless state of mind. We know of no duty requiring a person to stop under such circumstances. Even though it be midnight, one prudent person might stop, though another equally prudent might apprehend danger and decline to stop. Certainly the failure to stop under such conditions could not be evidence to authorize a jury to find such act to be the equivalent of a specific intent to kill. Neither could inattention or negligence supply such intent. Accordingly, the evidence was not sufficient to support the verdict and the trial judge erred in overruling the motion for new trial.
Inasmuch as this case is remanded for another trial, we also rule on some of the questions raised in the amended motion for new trial, not covered by the foregoing ruling, which might be raised in another trial.
2. The second and third grounds of the amended motion allege error in the admission of testimony. As evidence of lack of mental capacity, the accused introduced a psychiatric report from the Veterans Administration dated July 21, 1948, which report contained the statement: "He drinks periodically to promote sleep but denies doing this to excess."
(a) Over objection the State introduced the following testimony of B. B. Hayes: "I had an occasion to make a case against him [the accused] on or about the 27th day of December, 1947, for driving an automobile while under the influence of whisky." The mere fact that the witness made a case against the accused was of no probative value, was prejudicial, and should have been excluded.
(b) Over objection the State introduced an accusation from the City Court of Griffin charging the accused with driving an automobile while intoxicated, on March 30, 1946, with a plea of guilty. Inasmuch as the accused admitted upon the trial now under consideration that he drove the motor vehicle after having taken a drink, and the further fact that the plea of guilty in a previous case for driving intoxicated would not be *Page 772 impeaching of his statement that he did not drink "to excess," which at most would be a matter of opinion and conclusion of the accused, this evidence was prejudicial and should have been excluded.
3. The fourth ground of the amended motion in substance alleges error in the failure of the court, upon request, to charge that, if the jury should find that the proximate cause of the homicide was the fact that the pick-up truck was parked on the highway, then they should acquit the accused. If the court properly charges what would constitute murder, involuntary manslaughter, and accidental homicide, such would necessarily cover the situation set forth in this requested charge.
4. The fifth ground of the amended motion is an objection to to a portion of the charge which, in effect, instructed the jury that, if the accused was under the influence of intoxicating liquors and such was the proximate cause of the homicide, this would authorize a conviction, without limiting said portion of the charge to a verdict of involuntary manslaughter. This was error for reasons set forth in the first division of this opinion.
Judgment reversed. All the Justices concur, except Candler,J., who dissents.