Opinion
34041.
DECIDED MAY 20, 1952.
Involuntary manslaughter; from Jenkins Superior Court — Judge Renfroe. February 14, 1952.
Thomas M. Odom, for plaintiff in error.
Walton Usher, Solicitor-General, W. G. Neville, contra.
1. Testimony as to the speed of an automobile by a witness having experience in this field, based upon physical data such as weights, distances, positions of the automobiles and skid marks, is admissible as tending to establish the issue of the speed at which the automobile in question was being operated at the moment of impact.
2. Photographs are admissible in evidence when properly identified by the person who took them and who testifies that they present a true picture of the scene represented.
3. The granting of mistrials upon improper argument of counsel is a matter largely within the discretion of the trial court, and the statement here, to the effect that conviction of law violators in traffic cases would help to stop automobile collisions, although not approved by this court, is not such harmful error in this case as to render the court's ruling refusing a mistrial on that ground an abuse of discretion.
DECIDED MAY 20, 1952.
R. L. Collins was indicted, in the Superior Court of Jenkins County, for murder and was convicted of involuntary manslaughter. The evidence on the trial authorized the jury to find: that the defendant was, on the day in question, having some work done on a 1951 Pontiac belonging to him at about 9 to 11 a. m., and was under the influence of liquor at that time; that thereafter he picked up a passenger on the highway and the two men drove about until approximately midday; that they stopped at two places and drank a bottle of beer at each place; that the defendant during the latter part of this time drove in an erratic manner, weaving from side to side of the road and traveling at between 55 and 75 miles per hour; that due to the manner in which he was driving the guest in the automobile refused to accompany him further after the second stop; that the defendant drove away without weaving, but started the car at an excessive speed, causing the wheels to spin; that he then proceeded down U.S. Highway 25 in the City of Millen, and passed an automobile in which one of the State's witnesses was riding, and that the witness watched him proceed up the road, which was straight and level, saw him overtake and attempt to pass a jeep, and that the road ahead was clear at that time; that the defendant turned to the left to pass the jeep and suddenly hit the left side and rear, knocking the vehicle off the highway and killing the occupant; that from the positions of the cars and skid marks the defendant was traveling at an estimated 80 miles per hour at the time of collision; that the witness who saw the collision parked his automobile and was examining the wreck when the first automobile arrived from the opposite direction; that the occupant of the jeep was dead or dying when he first examined him; that the defendant was knocked unconscious, but did not appear to have been seriously injured; that he was drunk; that he recovered consciousness at the hospital to which he was immediately taken and was at that time drunk, boisterous, and unco-operative; and that he was soon thereafter removed to the jail.
The defendant in his statement admitted having drunk parts of two cans of beer, but denied that he had been intoxicated. The jury returned a verdict of guilty of involuntary manslaughter, whereupon the defendant filed a motion for a new trial on the general grounds, which was later amended by the addition of three special grounds. The denial of this motion is assigned as error.
1. A member of the Georgia State Patrol, who arrived shortly after the collision and before the automobiles had been moved, testified as to his estimate of the speed of the defendant's automobile at the time of impact. Upon objection, the witness testified that his estimate was "based upon the distance the vehicles were traveling, the marks on the road, the extent of the damage, and also the experience I have had in investigating accidents." The witness also based his opinion on the relative positions of and damage inflicted upon the automobiles. This being so, the court properly overruled an objection to such testimony on the ground that it was based upon an insurance report and not on the knowledge or experience of the trooper. One who has observed the speeds of automobiles may make an estimate of the speed thereof based upon such physical data. See Rentz v. Collins, 51 Ga. App. 782 (4) ( 181 S.E. 678). Special ground 1 of the amended motion for a new trial is without merit.
2. A witness for the State, who examined photographs introduced in evidence, testified that the pictures had been made by him and that the photographs offered in evidence presented a true picture of the scene represented. An objection on the ground that the pictures might have been changed in developing was therefore without merit. See Chance v. State, 156 Ga. 429 (5) ( 119 S.E. 303); Johnson v. State, 158 Ga. 192, 197 ( 123 S.E. 120). Special ground 2 is without merit.
3. Special ground 3 complains of the failure of the trial court to grant a motion for a mistrial made by counsel for the defendant, based upon alleged improper argument of the solicitor-general, as follows: "To convict a man would be showing a lesson to the general public that an offense of this type of crime would teach the public a lesson not to drive an automobile under the influence or speed up and down highways."
The restraint and correction of improper argument, and the granting of mistrials thereon, are largely matters within the discretion of the court. Code, § 81-1009; Black White Cab Co. v. Clark, 67 Ga. App. 170 (12) ( 19 S.E.2d 570); Essig v. Cheves, 75 Ga. App. 870 (2) ( 44 S.E.2d 712). In 24 C.J.S., Criminal Law, § 1974, the following is stated: "When a court of justice awards punishment for a breach of the law the object is not vengeance; the purpose is to deter the person who has broken the law from a repetition of his act, to reform him, and also to deter other persons from committing similar breaches of the law." In Johnson v. State, 72 Ga. App. 534 (4) ( 34 S.E.2d, 555), a statement in argument by the solicitor-general as follows. "You should make a verdict of guilty in this case because it would be a precedent and show the public you will stop automobile collisions," was regarded as a deduction from the evidence, and the denial of a motion for a mistrial based thereon was held not an abuse of the trial court's discretion. While argument of counsel should be confined to the evidence and should not appeal to the fears or prejudices of the jury, but should rest squarely upon the guilt or innocence of the accused, the remark here, although not approved, was not of such an inflammatory nature as to demand the grant of a mistrial. This ground is without merit.
4. The evidence amply authorized the verdict, and the trial court did not err in denying the motion for a new trial on the general grounds.
Judgment affirmed. Gardner, P.J., and Carlisle, J., concur.