Opinion
40454.
DECIDED FEBRUARY 20, 1964. REHEARING DENIED MARCH 17, 1964.
Involuntary manslaughter; indictment, demurrers, etc. Coweta Superior Court. Before Judge Knight.
Sanders, Mottola Haugen, Charles Van S. Mottola, for plaintiff in error.
Wright Lipford, Solicitor General, contra.
When an indictment charged a co-defendant with the offense of involuntary manslaughter while in the commission of acts made unlawful by statute — engaging in a contest of speed with motor vehicles on a public highway, driving over 50 miles an hour, and aligning the motor vehicles abreast and racing them in a manner so as to occupy all the main traveled portion of the public highway to the exclusion of all others and alleged that as a consequence of these unlawful acts one of the defendants upon approaching a motor vehicle traveling along the public highway in the opposite direction lost control of his vehicle, thus inflicting mortal wounds on the deceased, the indictment presented an issue whether the unlawful acts were the proximate cause of one of the defendants losing control of the motor vehicle which resulted in the death of the deceased, and was not subject to general demurrer.
DECIDED FEBRUARY 20, 1964 — REHEARING DENIED MARCH 17, 1964.
This indictment accused the defendant Musick and the codefendant Haynes with the offense of involuntary manslaughter in that the defendants, ". . . without any intent to do so and without any malice or mixture of deliberation and in the commission of certain unlawful acts herein set out, did kill one Vickie Adams in the following manner to wit: For that the said accused James Cecil Haynes and Larry Wayne Musick by common intent and concert of action, and while in the prosecution of a riotous intent, wilfully and intentionally race and otherwise engage in a contest of speed with motor vehicles and with each other on Ga. Highway 16, a public road and highway in Coweta County, Georgia, in a violent and tumultuous manner, . . ." and "did approach a motor vehicle traveling along said highway in the opposite direction and did kill one Vickie Adams who was then and there a passenger in the motor vehicle operated by the accused James Cecil Haynes; for that the said James Cecil Haynes in furtherance of and in commission of and as a direct consequence of said unlawful acts herein set out did lose control of the motor vehicle which he was then and there driving, causing said motor vehicle to leave the main traveled portion of Ga. Highway 16 and inflict certain mortal wound and certain mortal wounds on and upon the person of the said Vickie Adams, from which said mortal wound and mortal wounds the said Vickie Adams died." The unlawful acts specified in the indictment are (a) engaging in a contest of speed; (b) operating motor vehicles at a speed greater than 50 miles per hour at a time one-half hour after sunset and one-half hour before sunrise; (c) aligning the motor vehicles abreast and racing them, which racing occupied all of the main traveled portion of a heavily congested public road to the exclusion of all others; (d) wilfully and by concert of action engaging in a riotous action and conduct; (e) while engaged in a contest of speed with motor vehicles at a speed in excess of 50 miles per hour at a time between one-half hour after sunset and one-half hour before sunrise, in aligning their motor vehicles abreast and while engaged in the act of racing, the accused James Cecil Haynes lost control of the motor vehicle in which he was racing and in which the deceased was a passenger, which resulted in the death of the deceased.
The defendant Musick assigns error on the trial court's overruling of his demurrers to the indictment.
1. One of the grounds of the demurrers is that the indictment is not sufficient to charge the defendant Musick with any offense under the laws of this State. The indictment alleges the commission of several unlawful acts: (1) engaging in a contest of speed with motor vehicles on a public highway, commonly known as "drag racing" ( Code Ann. § 68-1626 (e) (h); § 68-9931); (2) driving a vehicle in excess of 50 miles per hour upon the public roads of this State between the time of one-half hour after sunset and one-half hour before sunrise ( Code Ann. § 68-1626 (b) 2; § 68-9926). Thacker v. State, 103 Ga. App. 36, 39 ( 117 S.E.2d 913). It alleges that the defendant was engaged in both of these unlawful acts at the time the deceased was killed. It further alleges that as the two vehicles approached another vehicle traveling along the highway in the opposite direction the defendant Haynes, in furtherance of and in commission of and as a direct consequence of these unlawful acts, did lose control of his vehicle, thus inflicting mortal wounds on the deceased, a passenger in the vehicle operated by defendant Haynes. These allegations are sufficient to present an issue whether the unlawful acts of the defendant Musick were the proximate cause of the death of the deceased. Lee v. State, 107 Ga. App. 484, 486 ( 130 S.E.2d 814).
The trial court did not err in overruling these grounds of the demurrer and the demurrer numbered 5.
2. Other grounds of the demurrers are that the indictment, because it contains allegations that the unlawful acts were done by the defendant "while in the prosecution of a riotous intent," amounts to an accusation of murder under Code § 26-1009, and that these allegations are extremely prejudicial to the defendant in an indictment for involuntary manslaughter. In view of the fact that this court has no jurisdiction of the offense of murder, and the fact that counsel for both the State and the accused contend that this indictment must stand or fall as one for involuntary manslaughter, the question whether the indictment is adequate for the offense of murder is not before us.
Code § 26-1009 provides: "Involuntary manslaughter shall consist in the killing of a human being without any intention to do so, but in the commission of an unlawful act, or a lawful act, which probably might produce such a consequence, in an unlawful manner: Provided, that where such involuntary killing shall happen in the commission of an unlawful act which, in its consequences, naturally tends to destroy the life of a human being, or is committed in the prosecution of a riotous intent, or of a crime punishable by death or confinement in the penitentiary, the offense shall be deemed and adjudged to be murder." In the opinion in Marshall v. State, 179 Ga. 290, 291 ( 175 S.E. 581), affirming a conviction for murder, the court stated that the phrase "in the prosecution of a riotous intent" is "used in the Code [§ 26-1009] in its popular sense, and signifies a killing in the prosecution of a reckless or wanton act, or with criminal indifference to the consequences. . . An individual may be actuated by `a riotous intent,' although two or more persons are necessary to commit the offense of riot." The allegation in the present indictment of an unlawful act while in the prosecution of a riotous intent is repugnant to the definition of involuntary manslaughter in Code § 26-1009.
The defendant's demurrers numbered 1, 2, and 4 should have been sustained.
3. Another ground of the demurrer is that the allegation as to the defendant's "wilfully and by concert of action engaging in a riotous action and conduct" does not show any unlawful act. Although the definition of the crime of riot is broad ( Code § 26-5302), we find no authority holding that the conduct described in the indictment constitutes a riot, nor do the Georgia precedents require this holding. Barron v. State, 74 Ga. 833; Green v. State, 109 Ga. 536 ( 35 S.E. 97); Stanfield v. State, 1 Ga. App. 532 ( 57 S.E. 953); Taylor v. State, 8 Ga. App. 241, 242 ( 68 S.E. 945); Coney v. State, 113 Ga. 1060 ( 39 S.E. 425); Stafford v. State, 93 Ga. 207 ( 19 S.E. 50); Smith v. State, 72 Ga. App. 108, 109 ( 33 S.E.2d 120); 46 AmJur 129, § 8 et seq. In the absence of more particular allegations as to the tumultuous or peace-disturbing character of the defendants' acts, demurrer number 3 should have been sustained.
The trial court did not err in overruling the demurrers discussed in Division 1, but erred for the reasons stated in Divisions 2 and 3 in overruling the remaining demurrers and refusing to quash the indictment.
Judgment reversed. Nichols, P. J., and Russell, J., concur.