The defendant was indicted for the offense of murder by running over and killing a named person with an automobile, and on the trial was convicted of the offense charged. His motion for a new trial based solely upon the general grounds was overruled, and he excepted. Held, that the evidence was sufficient to support the verdict, *Page 283 and the judgment refusing a new trial was not erroneous as contended. See Butler v. State, 178 Ga. 700 (173 S.E. 856); Jones v. State, 185 Ga. 68 (194 S.E. 216); Meadows v. State, 186 Ga. 592 (199 S.E. 133). The case differs on its facts from Ivey v. State, 191 Ga. 461 (12 S.E.2d 879).
Judgment affirmed. All the Justices concur.
No. 13968. JANUARY 13, 1942. STATEMENT OF FACTS by BELL, JUSTICE. Hayden Vaughn was convicted of murder in the alleged killing of Mrs. Grover Henderson by striking and running over her with an automobile. The verdict contained a recommendation of mercy, and a sentence of life imprisonment was accordingly imposed. The defendant moved for a new trial on the general grounds only. His motion was overruled, and he excepted.
A. E. Parris, sworn as a witness for the State, testified as follows: "My name is A. E. Parris. I live down at Six Mile Station, on the Cave Springs-Cedartown road. I operate a filing-station down there. That is in Floyd County. . . I do know Hayden Vaughn, the defendant in this case now, but I did not know him prior to this accident. On or about the 18th day of May, this year, I saw him run his car over Mrs. Grover Henderson. On this date in the afternoon this young fellow and a young lady drove up to my filling-station. and Mr. Vaughn asked me to examine the oil in his car, and I went out to examine the oil and found it to be O. K. While I was examining the oil in Mr. Vaughn's car he got out of his car and came around where I was examining the oil, and looked at the gauge himself; and when I got through I asked Mr. Vaughn where he lived, and he said he lived in Rome but had been to Florida. After I finished examining the oil and closed the car up, he turned around and went back to the car and walked around on the side where the young lady was. She was still in the car. She asked me to bring her a package of Camel cigarettes, and I went in the station and got them and brought them back to her and turned around and walked back up in the station and sat down in a chair in front of two big windows there in the station. They stayed out there around ten or fifteen minutes, something like that. They were in the car at the station. I didn't hear anything they said, but they were talking. In a few minutes she got out of the car and passed directly in front of the windows where I was sitting, *Page 284 and was going up towards the Taft highway; and when she did that, he whirled the car around the station and went back behind the store, and at that time another car was coming down the highway, and this car blew the horn at Mrs. Henderson, and she stopped until the car passed, and then she walked directly across the road out on the shoulder of the road, and then Mr. Vaughn drove right up behind her off the pavement; all four wheels were off the pavement when he drove up behind her. She was off on the side of the road, and he drove up behind her. She paid him no attention, and she was holding a purse over her eyes or her face to hide her face from the sunshine. She was on the east side of the highway, on the right-hand side coming towards Rome. Hayden Vaughn was driving his car in the direction of towards Rome, and she was traveling in the direction of towards Rome. He got entirely off of the pavement when he drove up behind her, and she was out on the shoulder walking up the highway. I would say that she was approximately six or eight feet, I don't know exactly, but I would say six or eight feet off of the pavement. It was far enough off of the pavement that all four of the wheels on the car were off of the highway over on the shoulder. As to whether or not he struck her with the car, well, not at that time; she proceeded on down the highway about two hundred feet, and he stood in his tracks until she got about that distance. She was still off the highway; and then he speeded up his car until the wheels on the car were spinning, his rear wheels were spinning, and he shot on down the road in his car while the wheels were still spinning and while he was still off of the pavement, and when he got pretty close to her, that is, enough to obstruct my view, as his car was between me and her.
"I was looking at the car at this time because I never took my eye off of them, but his car was between Mrs. Henderson and me when he drove up behind her. She disappeared, and I looked down and I saw her under the car. I could see her very plainly, and she was off of the pavement. There was plenty of room for Mr. Vaughn to pass her as she was way off the road. As to whether or not any other car was passing at that time, well, I just don't know whether another car was passing at that time or not, I don't think so, not right at that time. There was nothing to prevent Mr. Vaughn from driving down the highway, and he was off the road entirely, and he had that side of the highway entirely to himself. *Page 285 When I saw the woman under the car I jumped up and I said he has run over that woman, and I ran out of the door and started down there, and when I got out of the door he pulled the car off of her, and pulled about the distance, I guess, about the distance to where the jury is sitting there, off of her. I was going down there all the time, and when he pulled the car off of her he got out of the car and came around and proceeded to pick this lady up by the shoulders, and she was a pretty heavy girl, and he threw her back down on the ground and started to run off, and run down I guess about fifty feet down the road, and turned around and came back and came right up in my face, and I told him, `Young man, you ought to have to pay for this.' And about that time he jumped in the car and left. As to whose car it was that he got in, well, I just don't know whose car it was, but there was somebody in there with him. It was not his car; it was another car that he got in, but I don't know who it belonged to. This car that he got in had come up after the accident, and they left hurriedly. When he picked her up and threw her back on the ground I was standing within a few feet of her. He made no effort to do anything for her. When I got to the girl she said she was dying. My filling-station and store is at the intersection of the Taft Highway and Cave Springs Highway road, in between the two roads. It is in Floyd County. This accident happened in Floyd County. As to whether or not he made any effort to get an ambulance there, well, he didn't that I know of, I called for a couple of boys to get an ambulance, and I didn't know whether they were going to get it or not, and I got in my car and met the boys coming from Mr. Roberts' house, and they said that they had called an ambulance and that it was on its way. But so far as I knew Hayden Vaughn made no effort to get an ambulance for the lady. She did not die on the scene, but she died the following week-end."
"I don't know exactly what time of day this happened, but it happened in the afternoon somewhere around three o'clock. I didn't look at the time. As to whether or not there were any other people around my place of business at the time, well, yes sir, there were a good many around there. I could not tell you who they were, but several of the neighbors were around there, but I could not tell you exactly who they were. I waited on him, that is, I examined his oil, and I brought the young lady a pack of cigarettes. *Page 286 I didn't hear them engage in any conversation, that is, I didn't hear what they said, they looked like they were talking after I went back in the store, but I didn't hear what they said. There was no evidence of any ill feeling between them that I could see. There was no evidence of any kind that there was any ill feeling between them, and nothing in their conduct to indicate that he had any ill feelings towards her or that she had any towards him. They talked very calmly and didn't seem excited. She just told me to bring her a package of Camel cigarettes, and I did. My place of business is between sixty and seventy-five feet from the fork where the `Y' comes around there, and my pump is still forty feet further down in front of the place. This accident occurred around the tip of the fork and on the main road leading to Rome. As to whether or not at the point there where the roads divide, one coming to Cedartown and the other going to Rome, there is a big sign there; there are three big signs that set out in the point, little signs. These signs are on a signboard. As to whether or not, when the accident occurred, they were behind the signboard, that is the signboard between their car and me, well, no sir, they were ten or fifteen feet in the clear on the Taft Highway. As to whether or not you understood me to say that she had gone out of the vision, well, the car was between Mrs. Henderson and me when he ran over her. He was driving the car off of the pavement on his right-hand side of the road. The left-hand wheels of his car were not on the pavement; they were off the pavement. All four wheels were off of the pavement. As to how fast he was traveling when he went off from my place of business, well, I can't say, but his wheels were spinning, and he picked up some as he went off, and just before the car obstructed my view he slowed up the car. As to whether or not just before he struck her with the car he called to her, well, I don't know about that, I could not hear that. I was inside of my place of business. Immediately after he pulled the car off of her he jumped out and ran back and picked her up by the shoulders. He did not lay her down. He had her in his arms for a moment, and then he threw her down on the ground and ran down the road about fifty feet and turned around and came back and met me. He did have blood on his shirt. As to how long he stayed there after he turned around and came back, I could not tell you. Just as he met me I pointed my finger at him, and I told him, `Young man, *Page 287 you ought to have to pay for this'. He jumped in this other car and left. As to whether or not the car he jumped in and left in was stopped at my place, well, I don't know about that; the car was not there when he ran over her. I don't know who was in the automobile. I don't know whether he flagged the car down or not, I think the car just drove up there. I was not paying much attention to this other car, as I was trying to help the woman. I don't know what kind of car it was, as I didn't pay any particular attention to the car until it started across the bridge, and then I asked where the boy was, and some people that was there said that he was in that car. It looked like a green coupe automobile. I don't know whether he asked the driver of that car to take him to get an ambulance or not. I don't know who was driving the car. He got in the car with a man who was already operating the automobile. I don't know whether they attempted to get an ambulance or not. I do not have a telephone in my place of business. I had never seen Hayden Vaughn or the young lady before this happened. I did not know she was the wife of Grover Henderson. I did not know who she was. She didn't tell me who she was, and neither did he. From my place of business where the Taft Highway reaches the crest of the hill coming into my place of business it is sort of down grade on to the bridge, and Hayden Vaughn was at least that time on this slight down grade. I don't know what kind of automobile he was driving. I never paid any particular attention to it, except to notice that it was a two-seated car. I can not refresh my memory from my examination of the oil and tell you the type of car it was. It was not a later model automobile. I could not say definitely what model it was, because I never paid any special attention to it, but it was an old model car. Some four or five years old. . . As to whether or not they had any conversation at all after she got out of the car and started walking, well, I didn't hear anything. He drove up behind her, and she went on ahead, and he took off after her. As to whether or not he was drinking, well, I couldn't say he was drinking. I never smelled any liquor on him, and he was not staggering around to me where I was examining the oil. . . He got out of the car and came around to where I was examining the oil. He was within three feet of me when I was examining the oil. I didn't observe any indication that he was drinking or had anything to drink, *Page 288 His conduct was not such as would cause me to suspect that he had had anything to drink. He was very gentlemanly in his actions. She showed no evidence that she had had anything to drink."
Dr. J. H. Mull, a physician, testified that he examined Mrs. Henderson after she was admitted to a hospital, and she "was suffering from a good bit of shock and had numerous wounds," and that "she died from the result of the wounds that she received in the accident."
Mrs. J. W. Buttram, as a witness for the defendant, testified in substance as follows: In the hospital Mrs. Henderson "said she was going to die. As to whether or not she said anything about her being run over by the automobile was an accident, well, she told me that it was an accident, she said they went to a little store and got a quart of oil and some butter and eggs, and on the way back she got out of the car, and that it was just an accident. She said she was standing by the car, and he put his foot on the gas and caused the car to go."
Two witnesses for the defendant, one being the mother of the deceased, testified to statements made by Mrs. Henderson while at the hospital, to the effect that she was going to die; but neither of these witnesses claimed to have heard any statement by her as to the cause of her death.
The defendant made the following statement to the jury: "Well, I'll state the truth from the time I left home that morning. Gentlemen of the jury, we drove down to the twin oaks filling-station and got five gallons of gas for the afternoon's ride, and after we got the gas we drove down Lloyd Street from Maple Street, and we passed her house, and we saw her brother standing on the front porch, and we didn't stop. We drove on, and she said, `Where are we going?' and I said anywhere you want to go, Hon. She said, `Let's go down to Grover's.' Grover Henderson was her husband before they separated, and I said, `No, Hon, let's not go down there.' And she said, `Yes, let's go by there and see if he is there.' We seen his car there parked in the front yard, and I said, `Let's drive on down the road.' And she says, `No, let's stop and see him a minute.' So we turned around and went back and pulled out in the yard, and he came out there and talked to us. We looked around at his cattle and hogs; he has a lot of cattle and calves and hogs there on his place; and that's where we bought the butter and *Page 289 eggs. We got the butter and eggs there from him, and we stayed down there a couple of hours and drove back in the highway, and she got after me about wanting to drive, and I told her, I said, `Hon, you haven't got any license to drive.' But she kept trying to persuade me to let her drive, and so I pulled out on the side of the road, and she slid under the wheel. I told her I would walk on down to the filling-station and that if she wanted to drive she could drive on down there herself, and I pulled the car off of the pavement, and I walked on down to the filling-station on the right of the road there and bought a package of chewing gum. And when I came back out she slid over and I slid under the wheel, and she said, `I wish you would get a package of chewing gum.' And I said, `Hon, that's what I came in here for.' Then we drove on over to Mr. Parris's filling-station, and he checked the oil. She said, `I'm going to drive on from here.' And I said, `No, Hon, let me drive home.' And she got the keys out of the switch. I said, `It's best for me to drive, Hon.' And she said, `No, I've got the switch-key, and I'm going to drive from here.' And I said, `Well, if you are going to do that way' — Wait just a minute, gentlemen of the jury; she said she was going to drive from there, and I said `No, if you're going to drive, I'll go on to town.' And then she got the switch-key and when I said that then she threw the switch-keys in my lap and unlocked the door and got out and started on down the road, and I stood there and watched her as she crossed over the Cedartown road, and she had her purse up over her eyes, and then I put the key in the switch and followed her, and like Mr. Parris said I pulled the car around the filling-station, and as I did that a car went by, and I drove on across the road down to her, and I pushed the brakes practically to the floor-board, and they wouldn't stop, and I ran over her. After I ran over her I jumped out of the car and ran back there, and I took hold of her and told her, I said, `Hon, help me to get you in the car.' And she didn't say a word to me; so I tried to lay her down, and I started to run back to the filling-station to call an ambulance, and I met Mr. Parris on the way back, and he said, `Buddy, you are going to have to pay for this.' Then a car pulled up there, and a man jumped out and looked at her, and he said, `I'll get an ambulance.' And I ran with him, and we got in his car and we drove up there to where the road turns, and he slowed down, and I asked *Page 290 some people there at a place if they had a telephone, and the man said `No, there is a telephone at the next place.' I was in the front seat, and he had his wife and kid in there in the car, and then we drove on up there to the light on the road, and the light was red, and we was waiting for the light to change, and we saw an ambulance coming then, and I knew that somebody had beat me to it, and I told them that I would leave you people here; then I went on to report the thing at home and to change clothes, I had blood all over me. When I got to my mother's little place out there I changed shirts, and I told my stepfather and another fellow there by the name of Hugh Lambert, `Go to the hospital.' And they went on to the hospital, and when they got back the law drove up and got me. From then on I have been in jail. Gentlemen of the jury, I want to state that I had been going with this woman for about ten months, and I loved her, and we were engaged to be married. I didn't have any grudge against her, and she didn't have any against me. She was getting her divorce the 19th, and we were to be married. And you fellows don't know the burden that is on me, because I loved her, and it was just an accident. I wouldn't have run over her. I loved her, and we were going to be married."
Mr. Mitchell, in behalf of the defendant, testified: "I work for Andrews Motor Company . . I am the service manager there, and I have been a mechanic fifteen years. I remember back in May my company towed a 35 Plymouth automobile from the junction of the Cedartown and Rome road out there. I had an occasion to move the automobile after it came into our shop. I came very near knocking the back door out of our shop with the car. It didn't have a sign of a brake on it. I examined the brakes after I got out of the car when I liked to have knocked the back door out of the shop with it. . . I don't know if anybody tampered with it before it was brought in or afterwards."
H. E. Carver, as a witness for the State, testified in rebuttal: "I live at Six Mile Station. My father runs a little store down there. As to how far my father's store is from the intersection of the Cedartown and Rome Highway, well, it's about two hundred yards nearer Rome. I know Hayden Vaughn. I saw him on the day that this woman was killed. I sold him a package of chewing gum. I did hear a conversation between him and this woman as *Page 291 to who was going to drive the automobile. He said he wanted to drive, and the woman said she was going to drive."
Pearl Brooks, a witness for the State, testified that she visited Mrs. Henderson, her sister, at the hospital, and heard her say, "I wonder what made him want to do that."