dissenting. I concur with Chief Judge Bell’s dissent, and for additional reasons dissent.
"If any person shall attempt to commit a crime and in such attempt shall do any act toward the commission of such crime, but shall fail in the perpetration thereof ... he shall ... be punished ...” Code § 27-2507.
"A person . . . who wilfully litters any public road . . . with any trash ... garbage, rubbish... discarded materials ... is guilty of a misdemeanor.” Code Ann. § 26-2612.
*102Therefore, in my opinion it is unlawful to litter a public road with cigarette butts. If this is true the defendant was in fact guilty of negligence as a matter of law in throwing it out, this being an attempt to litter a public road.
Under the undisputed facts defendant’s negligence is not only plain, palpable and undisputable but his conduct has been so declared by a law-making body to be negligence as a matter of law, meeting the requirements of Garrett v. Royal Bros. Co., 225 Georgia 533 (170 SE2d 294).
I am authorized to state that Judge Evans concurs in this dissent.