1. The evidence was sufficient to authorize the jury to find that the homicide occurred in the commission of an unlawful act which in its consequences naturally tended to destroy the life of a human being.
2. In the circumstances of this case there was no error in refusing to declare a mistrial on account of the alleged improper remark of the solicitor-general in his concluding argument to the jury.
3. There being some direct evidence tending to show the guilt of the accused, it was not error to omit an instruction on the law of circumstantial evidence, without a request therefor.
No. 16228. JULY 13, 1948. REHEARING DENIED JULY 28, 1948. *Page 185 Sam Smith was convicted of murder, with a recommendation of mercy. The indictment charged that on September 3, 1947, in Wilkinson County, he "did then and there unlawfully, and with force and arms, make an assault in and upon one Alma Key with an automobile while driving same at a rate of speed greater than allowed by law, and while under the influence of intoxicating liquor, in the peace of God and said State then and there being, then and there unlawfully, feloniously, wilfully and of his malice aforethought and with reckless disregard for human life, did kill and murder, by driving the said automobile in said unlawful manner on, over, and into another automobile in which said Alma Key was riding as a passenger, causing a collision and by same then and there giving to the said Alma Key then and there a mortal wound, of which mortal wound the said Alma Key died." The defendant entered a plea of not guilty.
The State made out substantially the following case: The collision, which resulted in the instant death of Miss Alma Key, occurred about 5 o'clock in the afternoon at a "moderate" curve on the Irwinton-Toomsboro unpaved road, about one-half mile from Toomsboro. The decedent and Mrs. Sybil Balkcom had engaged Harold Walker, a taxicab operator, to take them to their school in Toomsboro. Mrs. Balkcom testified that they were driving about 35 or 40 miles per hour, and on their right side of the road, when the defendant's car came around the curve at a fast rate of speed and on their side of the road; that the cars would have been obliged to collide head-on had they continued, and as a result of the defendant driving on their side of the road on the curve the cars did collide, the defendant's car hitting Mr. Walker's car at the right front door; that the road was bad at that time, and drivers were inclined to travel on the better part to avoid the rough places.
George Hatcher, Sheriff of Wilkinson County, testified: that the tire tracks on the road showed that Mr. Walker's car was on its right or proper side of the road as it went into the curve which turned to the left, and that the defendant's car was on its left or wrong side of the road as it rounded the curve, and when the cars were about 50 feet apart Mr. Walker quickly turned to *Page 186 the left, and the defendant turned to his right, and the defendant's car went into the right front door of Mr. Walker's car; that the cars collided near the center of the road; that the condition of the cars showed that the defendant must have been driving at a high rate of speed at the time of the collision; that his Nash automobile had gone into the right side of Mr. Walker's car to within 18 (12) inches of its windshield; that a high impassable bank on Mr. Walker's right would have prevented him from turning in that direction; that the road at that time and place appeared to be in a good condition of repair, with nothing apparent to cause one to drive on a better part of the road; that he saw the defendant shortly after the collision, and he had the odor of an intoxicating beverage on his breath, and did not appear to be normal; that his eyes showed that he was under the influence of some kind of intoxicant; that the defendant admitted that he had drunk two bottles of beer.
Woodrow Thompson testified that he saw the defendant pass the crossroads at Toomsboro going in the direction of Irwinton, around 4 or 5 o'clock in the afternoon at a "terrific" rate of speed, estimated to be at least 60 miles per hour; that he didn't slow down for the crossroads and continued at the fast speed until he passed over a hill and out of his sight; that the collision occurred about one-half mile below the crossroads.
The defendant made the following statement to the jury: "I was traveling west, Mr. Walker was traveling east. When I passed Mr. Thompson's store, I was not driving over 40 miles an hour. Mr. Thompson is a good man but he just made a wrong statement. When I rose this hill and went down the other and started up this other little hill, Mr. Walker, he come around that curve. I was driving nearly in the center of the road; he was too. I was pulling the shades down, the sun was beaming right down in my windshield and I was pulling the shade down where I could see the road good. One of the boys said, `Look out,' and I saw the car. I threw my car to the right. I thought he was going to keep on. Just as soon as he got right in front of me he cut across right in front of me, and if there had been any way in the world I could have kept from doing it, I would have done it. . . I was not under the influence of whisky, I only drank two bottles of beer, one that morning and one that afternoon, and *Page 187 I was not driving over 40 miles an hour when it happened. That is all."
The exception is to the overruling of a motion for new trial on the general grounds and two special grounds. (After stating the foregoing facts.) 1. On the general grounds of the motion for new trial, it is insisted by the plaintiff in error that the evidence was insufficient to authorize the jury to find that the killing happened "in the commission of an unlawful act, which in its consequences, naturally tends to destroy a human life" (Code, § 26-1009); and that the judgment denying a new trial should be reversed on the same grounds and for the same reasons as those in the recent cases of Huntsinger v. State, 200 Ga. 127 (36 S.E.2d 92), and Smith v. State, 200 Ga. 188 (36 S.E.2d 350). Both of those cases contain a comprehensive discussion of the related sections of our Code, and a review of the previous decisions by this court on the subject of murder resulting from the unlawful operation of an automobile. The majority opinions, which reversed the judgments denying new trials, were based on the ground that the evidence failed to show that the homicide happened in the commission of an unlawful act "which, in its consequences, naturally tends to destroy the life of a human being." In neither of those cases was there any evidence that the driver of the automobile involved was under the influence of an intoxicating liquor at the time of the killing.
While an automobile is not per se a deadly weapon, it may be operated in such a manner and under such circumstances as to destroy human life. To determine whether the killing is manslaughter or murder under § 26-1009 of the Code, the jury should consider all the surrounding circumstances, such as the rate of excessive speed, weather, traffic, physical character of the highway, nearness to centers of population, and degree of intoxication of the driver.
In the instant case, there was ample evidence to authorize the jury to find that at the time of the collision the defendant was operating his automobile in an unlawful manner by violating *Page 188 three statutes governing the operation of motor vehicles upon public highways of this State, viz: § 68-301, which prescribes the speed limits for motor vehicles traveling on public highways; § 68-303 (e), which directs that drivers shall reduce speed and keep to the right of center of the highway when rounding curves; and, § 68-307, which prohibits the operation of a motor vehicle upon a public highway by a driver while under the influence of an intoxicating liquor. The jury was authorized to find that, while operating his automobile in such manner, contrary to our laws, the defendant was engaged in an act "which, in its consequences, naturally tends to destroy the life of a human being," and to find him guilty of murder. 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);Powell v. State, 193 Ga. 398 (18 S.E.2d 678); Josey v.State, 197 Ga. 82 (28 S.E.2d 290).
The verdict can not be set aside on the general grounds of the motion.
2. In special ground one it is insisted that the court erred in not declaring a mistrial, on motion of the accused, on account of a remark made by the solicitor-general in his concluding argument to the jury, as follows: "If any one came along at a reckless rate of speed and scattered my children's legs about in one place and their brains in another place I would take my shotgun and kill him."
In ruling on the motion for a mistrial the court stated: "Mr. Baldwin, the statement you have just made to the jury and to which objection is made, was improper. It has no place in this case. It should not have been made by you. You, gentlemen of the jury, will totally disregard the statement of the solicitor-general, to which objection was made. It was an improper statement, and should not have been made by him. You will completely disregard it and eliminate it from your minds. You are instructed to give no consideration to his statement, or allow it to influence your verdict."
The trial judge in passing upon a motion for mistrial on account of alleged improper argument or remarks to the jury is vested with a broad and sound discretion, and his ruling will not be controlled by this court unless manifestly abused. Code, *Page 189 § 81-1009; Manchester v. State, 171 Ga. 121 (7) (155 S.E. 11); Georgia Power Co. v. Puckett, 181 Ga. 386 (2) (182 S.E. 384); Brooks v. State, 183 Ga. 466 (188 S.E. 711, 108 A.L.R. 752). Assuming that the remark was improper, in view of the rebuke of the solicitor-general by the judge, and his positive instruction to the jury to disregard such remark and give it no consideration, we can not say that the refusal to declare a mistrial was an abuse of discretion and denied the defendant the right to a fair trial. Hicks v. State,196 Ga. 671 (27 S.E.2d 307); Ward v. State, 199 Ga. 203 (33 S.E.2d 689). This ground of the motion is therefore without merit.
3. The defendant, in his statement to the jury, admitted that he actually drove the automobile which collided with that in which the decedent was riding, but claimed that the collision was the result of an accident. In view of this statement to the jury, and the direct proof of the illegal operation of the automobile by the defendant, it can not be said that the conviction was dependent solely upon circumstantial evidence, and that the court's failure to charge on the law of circumstantial evidence, without request, was error. Strickland v. State, 167 Ga. 452 (1) (145 S.E. 879); Bowen v. State, 181 Ga. 427 (4) (182 S.E. 510); Blocker v. State, 185 Ga. 322 (2) (195 S.E. 207); Powell v. State, 193 Ga. 398 (3) (18 S.E.2d 678); Booth v. State, 198 Ga. 648 (1) (32 S.E.2d 303). Accordingly, special ground 2 of the amended motion for new trial is without merit.
Judgment affirmed. Jenkins, Chief Justice, Duckworth,Presiding Justice, and Judge Lilly concur. Atkinson, Wyatt, andHead, Justices, dissent.