Opinion
39000.
DECIDED SEPTEMBER 6, 1961.
Involuntary manslaughter. Dodge Superior Court. Before Judge Whaley.
Gordon Knox, Jr., A. R. Ross, for plaintiff in error.
Albert D. Mullis, Solicitor-General, Will Ed Smith, contra.
The verdict being supported by the evidence the trial court did not err in denying the motion for new trial on the general grounds only.
DECIDED SEPTEMBER 6, 1961.
W. H. Fisher was tried in the Superior Court of Dodge County, Ga., for the offense of murder with an automobile. He was convicted of involuntary manslaughter and sentenced to serve not less than two nor more than five years in the penitentiary. The defendant filed a motion for new trial on the general grounds only which was overruled by the trial court. The defendant excepted to this order, bringing the case to this court for review.
The brief of the evidence in this case is quite lengthy, four days being consumed in the trial of the case. The evidence offered by the State is substantially as follows: Two witnesses in an automobile observed another car on the Eastman-Cochran Highway at the north city limits of Eastman proceeding toward Eastman on July 22, 1959, at approximately 7:30 p. m. The car passed the witnesses and ran off the road, after which it proceeded into Eastman, the witnesses following it. The car was a 1955 Chevrolet, gray and white color, bearing dealer license tag #2513. The car turned around at the American Legion Home in Eastman and proceeded back north toward Cochran, the same direction from which it had approached Eastman. The witnesses, a young man and a young lady, turned their car around and followed the Chevrolet car north on the Eastman-Cochran Highway. The witnesses saw this car run off the right-hand side of the road at the county school bus stop and run into a bicycle which was being pushed by a little girl on the shoulder of the road. As they passed, the little girl was crying. The little girl testified that she had been to a store for her mother and was returning home on the shoulder of the road when a car came by and hit the front wheel of her bicycle. She testified that the car did not stop; that it was headed north toward Cochran; was a two-tone Chevrolet with a dealer's tag and that it was being driven by a man. After this incident the car continued north at a speed of approximately 50 to 55 miles per hour, still being followed by the two witnesses in their car. These witnesses saw the Chevrolet car stop in the road near Dodge Elementary School approximately five miles north of Eastman. After being stopped for several minutes in the road the Chevrolet car proceeded north again and at Bert Lowe's Fish Pond it swerved off the road on the left-hand side, went down an embankment, came back on the highway and continued on toward Gresston and Cochran. At Gresston, which is approximately 8 miles north of Eastman, the witnesses saw the car run off the right-hand side of the road, saw a cloud of dust arise and an object fall into the road. At this time the witnesses were following the Chevrolet car at a short distance, there being no vehicle or other obstruction between them and the Chevrolet car to obstruct their view. Upon approaching the scene where the Chevrolet car had run off the road and where they had seen a cloud of dust and an object fall into the road the witnesses saw the body of a young man, later identified as Irwin Tripp, in the road. The witnesses testified that the car that ran off the road, caused the cloud of dust, and the object to be knocked into the road was the same car that they had followed from Eastman. Two other witnesses for the State testified that they were standing on the porch of their home across from the scene of the accident when they heard a noise, turned and saw a cloud of dust and an object up in the air, and upon proceeding to the scene saw that the object was Irwin Tripp, who was lying about in the center of the road on his right side with his feet pointing toward Eastman. Wilton Tripp, the father of the deceased, testified that he was working in his grocery store at Gresston at the time of the accident and was standing at the check-out counter about three feet from the front door at that time. He heard somebody shout that someone had been hit and upon coming to the front door of his store he saw a car with a white top and a dark bottom pass by proceeding north toward Cochran. He saw it continue up the highway approximately 300 or 400 yards, make a sharp turn to the right and run down an embankment. He saw the car back out of the ditch at which time the lights went off the car. At that time someone told him his son had been hit, and he went directly to him; that his son was lying practically in the middle of the highway and that he stayed with him until the ambulance arrived at which time he was taken to a hospital in Hawkinsville. He stated that his son's clothes were full of slivered and shattered glass and that he picked the glass out of his clothes on the way to the hospital. Upon arrival at the hospital he was examined by a physician who testified that he had a perforating wound in the left side of the abdomen near the left kidney, injuries to the left knee and multiple contusions over the body. He further testified that the deceased had evidently been struck by some object in the left side and had been knocked to a very hard surface and that such wounds resulted in the death of the deceased on July 23, 1959 at 11: 20 a. m. The father of the deceased testified that his son was 16 years of age at the time of the accident, in good physical and mental condition and played basketball on the high school team. Two other witnesses for the State testified that they were coming toward Gresston from the north when they met a car that was out of control forcing them to leave the highway to keep it from hitting them. They identified the car as about a 1955 Chevrolet with a light top and darker bottom. They saw the car go up the road a distance and turn off on a dirt road in an easterly direction just north of Gresston. Proceeding a short distance into Gresston, these witnesses saw the deceased lying on the pavement. Another witness who lived on the dirt road back of the Tripp store and parallel with the highway testified that she was in her front yard and her attention was attracted by the noise made by an approaching car; that the car was on the dirt road going toward Eastman; that there were no lights on the car and that she got a good look at the driver of the car whom she identified in the courtroom as the defendant. She identified the car as a two-tone black and white car. Another witness who lived approximately two miles south of Gresston on the Eastman-Gresston dirt road testified that a car passed by her house about dark making a scrubbing and squeaking noise and that it was traveling toward Eastman. Two City of Eastman police officers testified that in response to a call they proceeded toward Gresston on U.S. Highway 23 north of Eastman; that near Dodge High School, approximately 5 miles north of Eastman, they found a car stalled on the highway with the defendant sitting in it; that the car was a 1955 Chevrolet two-tone color and was stopped in the lane heading south. The motor was not running, the radiator was steaming, the left front tire was flat, the left front fender and headlight bent in, and there was other damage. Both officers testified that in their opinion the defendant was drunk and in no condition to drive; that the car bore a dealer's license plate #2513; that the time was around 8 p. m. on July 22, 1959. A Dodge County deputy sheriff testified that he approached the defendant in a two-tone 1955 Chevrolet automobile parked in the road near Dodge High School, arriving shortly after the two Eastman police officers arrived; that the defendant was under the influence of whisky and that he and the Eastman police helped him out of his car and into the deputy sheriff's car. He testified that he found a pint of whisky in the defendant's car and a pint bottle of vodka which was about half full under the front seat of the car where the defendant was sitting. He testified that after bringing the defendant to jail he went to Gresston where the Tripp boy had been hit; that at the scene of the accident he found the same type glass that came out of the headlight of the defendant's car, the glass being scattered over the pavement and on the dirt portion of the shoulder of the road. He further testified that from his investigation at the scene of the accident it appeared that the car which struck the deceased had swerved off the highway and that in his opinion the deceased was approximately two or three feet off the highway when he was struck. He also testified that he tracked the defendant's car from the place where the defendant was apprehended and found that it had come off a dirt road about a mile north of where it was found. A State patrolman testified that he talked to the defendant in jail shortly after the accident, that he had known the defendant previously and the defendant recognized him on this occasion. He testified that the defendant was incoherent in his speech, was reeling and his equilibrium was off and that he was not in a normal condition.
The defendant offered detailed evidence as to his whereabouts on July 22, 1959, showing that he left his home at Hazelhurst approximately 8 a. m. en route to an automobile auction in Macon, driving his 1955 two-tone Chevrolet which bore a dealer's tag. Several witnesses saw the defendant at the auction sale and as late as 3 or 4 p. m., all of whom testified that the defendant was normal and sober at that time. The defendant offered in evidence an original record of the Southern Bell Telephone Co. showing that a call was placed from Cochran, Ga., from a Mr. Fisher to Hazelhurst, Ga., at 7:23 p. m. and ended 30 seconds later. The defendant's wife testified that she received a call from him at this time from Cochran and that he advised her that he would be at home later that night. The defendant made a statement in which he detailed his activities during the day, stating that he called his wife from Cochran, that somewhere out of Cochran a big truck crowded him out of the road and he hit something; that the next thing he remembered was being in jail the following morning. A statement which the defendant made at his application for bail was introduced into evidence. In this statement the defendant stated that he bought a pint of whisky and a pint of vodka in Macon and after leaving Macon he bought and drank two cans of beer and took two drinks of vodka before arriving in Cochran.
The defendant also offered evidence that he had suffered a seizure in May of 1958 and one in June of 1959 similar to an epileptic seizure at which times he blacked out. Witnesses testified that at such times he was unable to recognize anyone and would not have been able to drive an automobile while under such attacks and that in the process of recovery from such attacks he appeared to be bewildered and befuddled and could have been mistaken for one who was intoxicated. The defendant also offered two expert witnesses in the field of accident analysis who testified that in their opinion the damage to the car could not have been done by the striking of a human being and that the damage was caused when the vehicle struck some solid object. They further testified that if the automobile left Cochran at 7:23 and arrived at the Eastman city limits at 7:30, a distance of 19 miles, the automobile would have to travel at an average of 207 miles per hour and that a 1955 Chevrolet automobile will not run that fast. The defendant introduced several character witnesses who testified as to his good reputation in the community in which he lived.
This is the second appearance of this case in this court. See Fisher v. State, 102 Ga. App. 505 ( 116 S.E.2d 640). The question to be here decided is whether or not there was sufficient evidence to authorize the finding of the jury. The defendant contends that there was no direct evidence that his automobile struck the deceased and that the evidence relied upon by the State was wholly circumstantial. While a considerable part of the State's case is based upon circumstantial evidence, there was the positive direct testimony of the two witnesses who were following the defendant's car to the effect that they saw his car swerve off the highway at which time they saw a cloud of dust and an object flying into the air, and that this object was seen to be the body of the deceased immediately upon their arrival at the scene of the accident. Other witnesses who heard the impact, saw the cloud of dust and the object in the air identified the car which hit the object as being the same make and color car which was being driven by the defendant at the time he was apprehended.
Witnesses at the scene of the accident fixed the time at approximately five minutes before 8 p. m. While other testimony would indicate an earlier time, the jury was authorized to believe that the accident occurred some 32 minutes after the defendant left Cochran, Ga., giving ample time for his vehicle to be at the scene of the accident traveling at a normal speed. This theory of the defense as well as the possibility that the defendant suffered an epileptic seizure at the time, together with the theory that some other vehicle could have struck the deceased have all been decided against the defendant by the jury. A jury has seen proper to render a verdict against the defendant in a case turning upon questions of fact; the judge who presided in the case has approved the verdict; the motion for new trial is confined to the general grounds, and this court, in accordance with the rule of non-interference in such cases, must affirm the judgment overruling the motion for a new trial. Walters v. Freeman, 116 Ga. 423 ( 42 S.E. 741); Meadows v. State, 186 Ga. 592 ( 199 S.E. 133). Where the verdict is supported by some evidence and is approved by the trial court, this court is without authority to interfere. Humphries v. State, 78 Ga. App. 139 ( 50 S.E.2d 799). After a careful consideration of the facts in this case we must conclude that there was ample evidence to authorize the verdict of the jury. The judgment of the trial court in overruling the motion for a new trial is therefore affirmed.
Judgment affirmed. Townsend, P. J., and Frankum, J., concur.