Opinion
33429.
DECIDED APRIL 19, 1951.
Reckless driving; from Dublin City Court — Judge Hicks. September 12, 1950.
E. L. Stephens, for plaintiff in error.
Lester F. Watson, Solicitor, contra.
1. The use of the words "wilful or wanton" in a statute is not so vague and indefinite as to be incapable of enforcement, and an accusation drawn thereunder is not demurrable for that reason.
2. "A motion to set aside the judgment is not the appropriate remedy in a criminal case if the indictment is void. The judgment may be arrested upon motion made during the term at which the verdict is rendered, or the prisoner may be discharged upon a writ of habeas corpus at any time thereafter, if no question as to the validity of the indictment was adjudicated at the trial."
3. ( a) Under the provisions of the act of 1939 (Ga. L. 1939, p. 295), as to reckless driving, the trial court, after a conviction, is unauthorized to require of the defendant, restitution in the nature of damages to the prosecutor.
( b) It is our practice in the reversal of a case, not to discuss the general grounds for the reason that we do not know what the evidence might be on another trial, but we might state here that unless the evidence is materially different on another trial, and more specific as to the offense of reckless driving under the provisions of the act of 1939 now under consideration, it would not sustain a conviction.
4. ( a) "Wilful or wanton" is the gist of the offense of reckless driving and it is the duty of the court to define the meaning of these words without a request to do so, and a failure to do so is reversible error.
( b) Special ground 2 is not argued.
( c) Where the court undertakes to charge the principles contained in a Code section, he should charge all the principles involved in the Code section, if the evidence warrants it.
( d) Special ground 4 is not argued.
5. Division 5 needs no further elaboration.
DECIDED APRIL 19, 1951.
The defendant was accused and convicted in the City Court of Dublin of "reckless driving." The accusation, while not verbally accurate under the provisions of the statute under which it was drawn, substantially alleges that the defendant did, within the period of the statute of limitations, drive and operate an automobile wilfully and wantonly upon Church Street in the City of Dublin, Georgia, in disregard of the safety of persons and property and committed the offense of a misdemeanor — reckless driving. The General Assembly made reckless driving an offense under the act of 1939 (Ga. L. 1939, pp. 295, 296), and this provision of law will be found also in Publisher's Pocket Supp. to the Code of 1933, § 68-9919. Before pleading to the accusation, the defendant filed demurrers both general and special. The general and special demurrers are to the effect that the accusation charges no criminal offense for that the provisions of said act of 1939 above referred to are so vague, uncertain and indefinite that they do not constitute a criminal statute and therefore the accusation drawn thereunder is void. The trial court overruled the demurrers. Exceptions pendente lite were filed thereto. The case proceeded to trial. A verdict of guilty was returned against the defendant. During the term of court in which the verdict of guilty was rendered, the defendant made a motion in arrest of the verdict, judgment and sentence of the court, and for grounds said:
"1. That the accusation in said case is void for the reason that the statute and law on which same is drawn and based is [Publisher's Pocket Supp. to the Code of 1933] § 68-9919, and reads as follows: 'Any person who drives any motor vehicles upon a street or highway in such a manner as to be in wilful or wanton disregard of the safety of persons or property is guilty of the criminal offense of reckless driving' same being Acts of the Legislature of Georgia, 1939, p. 296 subsection (a) of section 1.
"That said statute, section of the Code, and act of the Legislature is void for the reasons:
"(1) That same is so general, vague, indefinite, and uncertain in its terms, that it was incapable of enforcement as a criminal statute.
"(2) Said statute names and provides no rule or criterion by which the defendant would know . . when he was driving 'in such manner as to be in wilful or wanton disregard of the safety of persons or property.'
"(3) That said statute does not define 'wilful or wanton,' does not define what would be 'wilful or wanton' driving, does not define what act or acts on the part of a driver would be 'wilful or wanton,' or 'wilful and wanton' driving.
"(4) That said statute lays down no rule or criterion by which a court or jury can determine when a driver is driving or has driven his automobile 'in such manner as to be in wilful or wanton disregard of the safety of persons or property,' or in such manner as to be in wilful and wanton disregard of the safety of persons or property.
"(5) That said statute is so vague, general, uncertain, and indefinite that it constitutes no criminal offense and cannot be enforced as a criminal statute. . .
"3. That because of the invalidity of said statute, the accusation, verdict of guilty and judgment and sentence is void, and defendant [is] not guilty of violating any valid statute.
"4. That the court's judgment and sentence in said case is as follows: 'Whereupon, it is ordered and adjudged by the court, that the said William Grady Lancaster do work in the public work camp of said county, or elsewhere as the proper authorities may direct, for the term of twelve months, to be computed from the date he is received by the Superintendent of Public Work Camp of Laurens County, Georgia, from which sentence may be relieved by paying into the court at any time a fine of $220.00, and all costs accruing hereafter; $167.50 of the fine to be paid to the prosecutor,' which sentence is void for the following reasons:
"(1) That defendant was convicted of reckless driving under accusation drawn under Publisher's Pocket Addition to the Code of 1933, Section 68-9919, [Ga. Laws 1939, pp. 295, 296], which provides the punishment as follows: 'For first conviction, by imprisonment not less than five days, nor more than sixty days; by fine not less than $25.00, nor more than $100.00, or by both such imprisonment and fine; second or subsequent conviction not less than ten days nor more than six months, or a fine not less than $50.00, nor more than $500.00, or by both such imprisonment and fine.'
"(2) That the court is without authority to sentence the defendant to twelve months on the chain gang, public works camp, or elsewhere as proper authorities may direct, or any portion of twelve months in the public work camp of said county or elsewhere as proper authorities may direct.
"(3) That under said statute providing the punishment for reckless driving no provision is made that a defendant should work on the chain gang or public works camp any period of time, and the court was without authority to impose the said sentence as above set out.
"(4) That the court has and had no authority to require restitution to prosecutor of the amount provided in said sentence or any portion thereof.
"5. Movant shows that by reason of all foregoing facts, the accusation, said statute on which same is based is void, that the verdict, judgment and sentence of the court are likewise void, same should be arrested, vacated and set aside on all grounds herein set out, and that he should be discharged instanter.
"Wherefore, movant prays that all grounds of this, his motion in arrest, be sustained, and that he be forever discharged."
The court overruled the motion in arrest of judgment but before doing so amended the sentence as follows: "The sentence of the court in the above-styled case and stated case is hereby amended at this, the September quarterly term, 1950, of the City Court of Dublin, by striking from the original sentence the following: 'that the said William Grady Lancaster do work in the public-work camp of said county, or elsewhere as the proper authorities may direct for the term of twelve months, to be computed from the date he is received by the Superintendent of Public Work's Camp of said county, Georgia, from which sentence he may be relieved by paying into court at any time a fine of $220 and all costs accruing hereafter; $167.50 of the fine to be paid to the prosecutor.' And by adding to said original sentence in lieu of the above quoted conditions, the following: 'that the said William Grady Lancaster be confined in the common jail of said county for a period of sixty days, to be computed from the date he is received by the sheriff and jailer of Laurens County, and further ordered, that the said William Grady Lancaster may be relieved from serving said jail sentence by paying at any time, a fine of $100 to the proper authorities of said court. It is further ordered and hereby directed that the officers of said court pay to the prosecutor $75 restitution, and that $25 of said fine be retained by said officers and apply to the cost of the court in said case.' This, the 19th day of September, 1950."
The defendant filed his motion for a new trial on the usual general grounds and thereafter amended his motion by filing four special grounds.
Special ground 1 in effect complains because the court charged the statute under which the defendant was accused, but did not define the words, "wilful or wanton" or "wilful and wanton", and the court should have charged without a request, that the jury before they could convict the defendant, the evidence must show an evil design, purpose, and evil intent to injure another person operating an automobile or to purposely injure a person or property, in order to determine the meaning of the words used in the statute "wilful or wanton."
Special ground 2 assigns error in that the court erred in failing to charge the contentions of the defendant that he could not see the stop sign because he was a stranger in the city, and that his attention was being drawn to a red electric stop signal hanging overhead twenty-five or thirty yards ahead of him.
Special ground 3 assigns error upon the court's charge to the jury as follows: "I charge you further that to absolve one from the guilt of crime, it must not only appear that there was no evil design, but that there was no culpable neglect on the part of the defendant." The defendant alleges that this charge was error: (a) Because the charge was an expression of an opinion by the court that the defendant was guilty of a crime; (b) that said charge was not a correct principle of law in this case — the correct principle being "The person shall not be found guilty of any crime or misdemeanor committed by misfortune or accident, and where it satisfactorily appears that there was no evil design or intention or culpable neglect"; (c) that the court should have followed the words "no evil design" with the words, "or intention"; (d and e) that the jury should have been instructed that they would not be authorized to convict the defendant if it satisfactorily appeared to them from the evidence that there was no evil design or intention or culpable neglect on the part of the defendant; and further charged that in such event the collision would be attributed to misfortune or accident; (f) that the court should have charged the jury the meaning of culpable neglect.
Special ground 4 complains that the court should have charged the law as to circumstantial evidence.
The evidence for the State and the defendant tended to show: that the prosecutor, C. E. Haywood, testified substantially that the defendant ran his automobile into the automobile of the witness at Church and Academy Streets; that the witness was going west on Academy Street; that the defendant was going north on Church Street; that the defendant ran into the automobile of the witness because the defendant did not stop at a stop sign which was on the left-hand side of Academy Street; that the defendant was going north on Church Street below the theater; that there was a stop sign also at the intersection of those two streets for the benefit of all traveling north "on those two streets"; witness had the right of way under that stop sign; witness was going up the street on Academy and the defendant was going across Church Street"; that witness saw the defendant was going to hit him and he "wheeled to the right" and the defendant took off "the left-hand fender, radiator and grill" of the witness's automobile.
On cross-examination the same witness testified that the collision happened between 4 and 5 p. m.; that there were a good many cars parked for the picture show; that witness did not know whether the picture show was in progress but a good many automobiles were parked in from of the picture show on both sides of Academy Street; that automobiles were parked "on back below the church part on Church Street, but a man could see the stop sign." Witness further testified that he did not see the defendant's automobile before the collision; that the defendant could see the stop sign before he got to it.
A policeman testified that he was on duty the day of the collision; that he knew Mr. Haywood and met the defendant on the day of the collision and he was called to the place of the collision about five minutes after it happened. Witness described the damage to the prosecutor's automobile. There was a stop sign at the intersection of Church and Academy Streets. Witness stated that the defendant claimed that he did not see the stop sign; that the defendant claimed that there was an automobile that had him blinded; that the officer backed up the road thirty of forty feet, and that if the defendant had been looking for a stop sign, he could have seen it; that the defendant said that he did not see the stop sign, but admitted that it was his fault; that officers made a case against the defendant for running a stop sign in violation of the ordinance of the City of Dublin.
On cross-examination the same witness testified: "Q: You say he told you he didn't see that stop sign?
"A: Yes. I don't know how fast Mr. Haywood or Mr. Lancaster were driving. Mr. Lancaster drove his car off on its own power. It was approximately 3 in the afternoon. I imagine the picture show was being operated at that time; they do operate it every Sunday afternoon nearly all of the afternoon. There is a yellow line that prohibits cars from parking on the left side of the theater. They park there sometimes anyway, but they don't park as thick there as on the right. There were cars on both sides coming out of Church Street. I don't recall the number of cars parked on Mrs. Porter's side, but there were a good many. As to there being a good many cars parked on the right side, coming out on Church Street, going east, the stop sign was twenty-four feet clear on the right-hand side going north. There weren't any cars parked at the stop sign when we got there. I don't think we were over five minutes getting there. When the call was received. I was sitting at the city hall. I don't remember him telling me how fast he was running. There isn't a red light that hangs over Academy Street; there is a stop sign at Academy and a red light over Bellevue. I don't remember that he said anything about that red light, but there might have been something mentioned about it."
There was a police department report as to the collision, as follows:
"Location of accident: — Academy Avenue and North Church Street.
Name: — Mr. Claude Haywood.
Town — Dublin, Georgia.
Direction going: — West on Academy.
Name: — Mr. William Grady Lancaster, from McRae, Georgia.
Condition of brakes: — Good.
Condition of driver: — Good.
Direction going: — North on North Church Street.
Any evidence of intoxicants: — No.
"Mr. Lancaster failed to see the stop sign at the intersection on Church and Academy Streets, and hit Mr. Haywood's car on the left fender and front.
"Estimated damages: — $250.00 or more. No injured persons. There was a case made against Mr. Lancaster for running a stop sign."
The following map appeared on the policeman's report:
Another police officer testified substantially that he went to the scene of the collision; that the defendant stated to the witness at the scene of the collision that he failed to see the stop sign as there was a car parked on the right, twenty-four feet back of the stop sign. Witness testified that the automobile was parked about thirty or thirty-five feet from the stop sign. Defendant could have seen the stop sign if he had been looking for it. Witness testified that the place where the collision occurred was a thickly traveled section both ways. The overhead stop light was on Bellevue.
On cross-examination, the same witness testified further that the defendant told witness that the defendant did not see the stop sign and said: "The boy [meaning the defendant] said the accident wasn't meant to happen, but he failed to see the stop sign and ran out and hit Mr. Claude Haywood. . . As far as wilful, or the boy meant to do it, I don't guess he did. I wouldn't say he did it intentionally. . . He was sober." Witness did not testify whether the defendant was driving ten, fifteen, or twenty miles per hour. He saw no signs of any fast driving.
The defendant made a statement substantially as follows: that he was going North on Church Street; that he was a stranger in Dublin, and automobiles were "parked up on the stop sign"; that he just didn't see the stop signal; that the collision wasn't willful; that an automobile was parked near the stop sign; witness saw the traffic light twenty-five or thirty yards ahead of him (meaning the traffic light on Bellevue and not at the intersection of Academy and Church); there was no traffic light at the intersection of Church and Academy where the collision occurred; witness was not driving over twelve or fifteen miles per hour, and did not see either the stop sign or the prosecutor until he was too close to stop; witness did not think that the prosecutor saw him until about that time (the prosecutor testified that he did not see the defendant until a moment before the collision).
Curtis Lowe testified substantially for the defendant that he was riding in the front seat with the defendant; that witness did not see any stop sign and did not believe that the defendant saw it; that witness and the defendant were strangers in the City of Dublin and did not know the stop sign was there; that cars were parked all around on both sides on Church Street before the defendant's automobile reached the intersection; that witness saw a red light ahead of them at the next crossing; that the defendant and the witness were going to the hospital; that witness did not see the automobile in which the prosecutor was riding before the automobiles came together; that the defendant was driving between twelve and fifteen miles per hour; and that no one in the car with the defendant was drinking.
On cross-examination the same witness testified that the automobile which the defendant was driving was damaged to the extent of about $12; that the defendant did not see a stop sign for "if he could have seen it, I would have seen it"; that the defendant didn't slow down on entering the intersection because he was not driving over twelve to fifteen miles per hour; that witness did not know whether the prosecutor had the right of way, as witness was from McRae. Witness further testified that he had known the defendant five or six years and had ridden with him many times in automobiles; that the defendant was a very careful driver; that witness was sitting on the right-hand side of the car and could have seen a stop sign better than the defendant could have seen it, if there was a stop sign there; that the defendant was not driving fast enough to put on brakes; that the defendant did not drive into the prosecutor; that it was an accident; that the defendant always observed stop signs, but that he didn't observe this one; that witness saw the red light directly ahead of the automobile in which he was riding about twenty-five or thirty yards — right over the center of the next street (Bellevue); that the defendant saw it and was making for that electric stop signal; that he did just what witness would have done had witness been driving. Witness did not know whether the defendant could have seen the stop sign if he had been looking for it; witness didn't go back down there and see how far the defendant could have seen it down Church Street; witness was on crutches and all witness knew was that the defendant said that he didn't see it.
C. N. Lowe testified substantially that he and his son were in the automobile with the defendant when the collision occurred; that they had been with the defendant driving from McRae to Dublin; — they had been driving about an hour and a half; that "there were cars parked on both sides of the road"; that witness did not see the stop sign but saw the red light at the next crossing (Bellevue); that the defendant was looking directly at the red light signal; that the prosecutor's automobile hit the defendant's automobile on the right from fender and knocked the fender against the wheel; that in driving from McRae to Dublin, the defendant drove carefully all the way that afternoon; that witness had never been over this street before except one time at night and on that occasion he was in an ambulance; that at that time witness did not observe a stop sign; that witness knew that the defendant was looking straight ahead at the red electric light on Bellevue; that the defendant stated immediately that he did not see a stop sign and "he is a truthful man."
1. The court did not err in overruling the demurrer to the indictment for the reasons, as the defendant contends, that the words, "wilful or wanton" disregard of the safety of persons or property as contained in the statute, and the accusation based on the provisions of the statute are not so vague, indefinite, and uncertain in terms as to be incapable of enforcement. The words "wilful or wanton" in both our civil and criminal statutes and decisions, have a well established, clear and definite meaning under our legal jurisprudence. We might pause here to mention some of them. We will cite a number of cases regarding the use of the words in civil procedure and quote from several: This court, in Riggs v. Watson, 77 Ga. App. 62 ( 47 S.E.2d 900), said: "The definition of reckless driving is based on willful and wanton disregard of the safety of other persons. While the evidence was sufficient to show negligence on the part of the driver of the truck, we do not think it showed wilfulness or wantonness within the meaning of the law. 'The conduct of the defendant must be such as to evidence a wilful intention to inflict the injury, or else so reckless or so charged with indifference to the consequences . . as to justify the jury in finding a wantonness equivalent in spirit to actual intent.' King v. Smith, 47 Ga. App. 360, 366 ( 170 S.E. 546); Reid v. Sinclair Refining Company, 62 Ga. App. 198, 201 ( 8 S.E.2d 527)." Judge Parker, speaking for the court, thus stated that willfulness and wantonness was more than mere negligence.
In Southern Railway Company v. Davis, 132 Ga. 812, 818 ( 65 S.E. 131), Judge Lumpkin, speaking for the court, among other things stated: "Whether the terms 'wilful or wanton negligence' which are sometimes employed, be accurately used or not, they do not mean that mere negligence alone, as a rule, authorizes charges on the subject of exemplary and punitive damages." That case also makes it very plain that willfulness and wantonness is more than simple negligence.
In Callaway v. Zittrouer, 69 Ga. App. 338 ( 25 S.E.2d 311), this court went into the question of wilful and wanton negligence thoroughly, cited many authorities on the subject, and during the discourse said: "lack of ordinary care on the part of the railway company would not, in and of itself amount to wilful and wanton misconduct [citation]." See also Central of Ga. Ry. Co. v. Moore, 5 Ga. App. 562 ( 63 S.E. 642); Blanchard v. Ogletree, 41 Ga. App. 4 ( 152 S.E. 116); Buffington v. Atlanta, Birmingham Coast R. Co., 47 Ga. App. 85 ( 169 S.E. 756); Lee v. Lott, 50 Ga. App. 39 ( 177 S.E. 92); Frye v. Pyron, 51 Ga. App. 613 ( 181 S.E. 142); Southern Ry. Co. v. Kelley, 52 Ga. App. 137 ( 182 S.E. 631); Pollard v. Phelps, 56 Ga. App. 408 ( 193 S.E. 102); Atlantic Coast Line R. Co. v. Health, 57 Ga. App. 763 ( 196 S.E. 125); Roberts v. Banker, 57 Ga. App. 733 ( 196 S.E. 104); Richardson v. Pollard, 57 Ga. App. 777 ( 196 S.E. 199); Pollard v. Todd, 62 Ga. App. 251 ( 8 S.E.2d 566); Edwards v. Atlanta, Birmingham Coast R. Co., 63 Ga. App. 212 ( 10 S.E.2d, 449); Gooseby v. Pinson Tire Co., 65 Ga. App. 837 ( 16 S.E.2d, 767); Southern Railway Co. v. Lomax, 67 Ga. App. 406 ( 20 S.E.2d 437); Smith v. Atlantic Coast Line R. Co., 75 Ga. App. 346 ( 43 S.E.2d 420); Shehany v. Lowry, 170 Ga. 70 ( 152 S.E. 114). See 44 Words and Phrases, p. 589 et. seq.; 45 Words and Phrases, p. 187 et. seq. Black defines the word "wilful" as follows: "Proceedings from a conscious motion of the will; intending the result which actually comes to pass; defines; intentional; malicious." Black treating the words "wanton" refers to "wantonness": "A reckless or malicious and intentional disregard of the property right or safety of others, implying actively a licentious or contemptuous willingness to injure and disregard of the consequences to others, and passively intentional disregard of duty. . . wilfully unrestricted action, running immoderately into excess . . ."
Let us turn presently to some of our decisions dealing with the use of the words "wilful" and "wanton" in our criminal statutes. In the early decisions of this court, we find these words clearly defined in criminal cases. In Black v. State, 3 Ga. App. 297 ( 59 S.E. 823), Judge Powell, speaking for the court, held: "In a prosecution for trespass by cutting wood or timber under the Penal Code § 219, paragraph 1, willfulness is an ingredient of the crime. The word 'wilful' as used in this section, means 'intentionally, malevolently, with a bad purpose, an evil purpose, without ground for believing the act to be lawful." Code § 26-6907, codified from an act passed in 1898 regarding discharging a pistol on Sunday, was dealt with in Manning v. State, 6 Ga. App. 240 ( 64 S.E. 710), in which Judge Russell, speaking for the court stated: "It is the duty of the court upon the trial of one charged with a violation of this statute, to instruct the jury as to the meaning of the words 'wilful and wanton', as used in the statute, . . ." this clearly shows that the Court of Appeals recognizes that "wilful" and "wanton" had definite statutory meaning as early as May 18, 1909, when this case was decided. We will not discuss the Manning case further in this connection, since we will deal with it in another division of this opinion.
Numerous other cases involving criminal law from our appellate courts deal with these words, "wilful" and "wanton." In Kendall v. State, 9 Ga. App. 794 ( 72 S.E. 164), this court again went into the meaning of the word "wilful" and stated in headnote 2 the following: "The word 'wilfully' as used with relation to penal offenses ordinarily means more than 'intentionally:' It refers to an act done purposely to commit the particular wrong forbidden by the law. This is the sense in which it is used in the statute providing for the punishment of any person who shall 'wilfully interrupt of disturb any public school,' etc." In that opinion, on page 795, it was further stated: "The gravamen of the complaint against this charge is that the court defined the word 'wilfully', in the statute as entirely synonymous, with the word 'intentionally', and that this interpretation of the word was too narrow, and was incorrect because the word 'wilfully' in the statute implies something more than intentionally. We think that the word 'wilfully' in this criminal statute, and in most criminal statutes, is a stronger word than the word 'intentionally' and is broader and more comprehensive in its meaning; it embraces 'intentionally' in its meaning, but it means an intentional act committed with an evil design or purpose and without legal justification. In other words, it means the intentional and deliberate doing of the wrongful act prohibited by the statute." See also Cowart v. State, 62 Ga. App. 559 ( 8 S.E.2d 729); Thornton v. State, 63 Ga. App. 255 ( 10 S.E.2d 714); Jackson v. State, 82 Ga. 449, 450, 451 ( 9 S.E. 126); Jenkins v. State, 123 Ga. 523 ( 51 S.E. 598); Smith v. State, 126 Ga. 544 ( 55 S.E. 475). In Hateley v. State, 118 Ga. 79, 81 ( 44 S.E. 852), the Supreme Court said: "The accused was charged with wilfully cutting and felling certain trees and timber upon land the title to which was alleged to be in other parties named in the bill of indictment. He did not deny cutting the timber, but claimed to have been in possession of the land for 40 years. If he had been in the open, notorious, peaceable, uninterrupted, and adverse possession of the land for that length of time, he had title to it without reference to whether he had a deed to it from anybody. The statute upon which this indictment was founded was never intended to be used as a mode of settling disputed claims of title. It provides that the act of cutting must be wilful and the sense of the word 'wilful' as used in this connection, is intentionally, malevolently, 'with a bad purpose', 'an evil purpose', 'without ground for believing the act to be lawful.' King v. State, 103 Ga. 265."
It will thus be seen that even in our civil law the words "willful and wanton" mean more than ordinary negligence. In criminal law it is plain that they mean "intentionally, malevolently, and with an evil intent." The use of the words "wilful or wanton" or "wilful and wanton" as alleged in the indictment, distinguishes the instant case from the case of Hayes v. State, 11 Ga. App. 371 ( 75 S.E. 523). In this connection see a more recent case of this court, Gaines v. State, 80 Ga. App. 512 ( 56 S.E.2d, 772). The court did not err in overruling the demurrer to the indictment.
2. Under the facts of the instant case, and the law applicable thereto, the court did not err in overruling the motion in arrest of judgment. McDonald v. State, 126 Ga. 536 ( 55 S.E. 235). See also Waits v. State, 204 Ga. 295 ( 49 S.E.2d 492), and cases cited therein.
3. We come next to the general grounds of the motion for a new trial:
(a) Did the court err in the sentence imposed under the facts of this case? He imposed a fine of $100 and sixty days in jail and further provided that the officers should collect the $100, retain $25 to pay the costs, and pay to the prosecutor $75 as restitution for damage to the prosecutor's car. The act now under consideration is that every person convicted for reckless driving be punished: "Upon first conviction, by imprisonment for not less than five (5) days nor more than sixty days, or by a fine of not less than twenty-five dollars ($25.00) nor more than one hundred dollars ($100.00), or by both such imprisonment and fine." Then follows the punishment for the second offense. The succeeding section of the act provides that anyone convicted under the provisions of the act of 1939 (Ga. L. 1939, p. 295) "shall be guilty of a misdemeanor, and upon conviction thereof shall be punished as for a misdemeanor or as otherwise provided in this act." Our penal statute generally for a misdemeanor will be found in Code § 27-2506. This court held in Ray v. State, 40 Ga. App. 145 ( 149 S.E. 64), in a cheating and swindling case, that a sentence imposing a fine of $50 and restitution to the prosecutor was not valid unless the restitution provision was stricken. There is nothing in the provision of the act now under consideration in a criminal prosecution to compel the defendant, upon conviction, to pay to the prosecutor damages in a negligence case. Such a practice would lead to grave evils and would be using the criminal court for the collection of unliquidated damages. We are not unmindful of the decision of this court in Davis v. State, 53 Ga. App. 325 ( 185 S.E. 400), but the decision in that case will not be extended beyond its particular facts. Since the case is to be reversed on other grounds in the amended motion for a new trial, we will not discuss this principle further.
(b) Headnote (3-b) of this opinion needs no elaboration.
4. (a) Special ground 1 assigns error for the reason that the trial court did not define the words "wilful and wanton." This point is well taken. The wilful and wanton conduct in violation of the statute in regard to reckless driving is the gist of the offense and the proof that the conduct was intentional, malevolent, with a bad purpose and evil purpose should be proved by the evidence and the jury should be instructed in the charge of the court that such is the meaning of the words, "wilful and wanton." It is reversible error not to do so even without a request to charge. In Manning v. State, 6 Ga. App. 240 ( 64 S.E. 710), involving "wilful and wanton firing of a weapon" within the terms of the statute forbidding the shooting of firearms on Sunday, this court said: "It is the duty of the court, upon the trial of one charged with the violation of this statute to instruct as to the meaning of the words 'wilful and wanton' as used in the statute." To the same effect see Kendall v. State, 9 Ga. App. 794 (supra). See also Black v. State, 3 Ga. App. 297 ( 59 S.E. 823), and cases therein cited.
(b) Special ground 2 is not argued.
(c) Special ground 3 assigns error on the following charge of the court: "I charge you further that to absolve one from the guilt of crime, it must not only appear that there was no evil design, but there was no culpable neglect on the part of the defendant." This seems to be an attempt to charge the provisions of Code § 26-404 and was an inapt and prejudicial statement, under the facts of this case, which require a reversal. The Code section reads: "A person shall not be found guilty of any crime or misdemeanor committed by misfortune or accident and where it satisfactorily appears there was no evil design, or intention, or culpable neglect." As analogous, see Dunahoo v. State, 46 Ga. App. 310 ( 167 S.E. 614). The court, having charged a portion of said section, should have charged all of it under the evidence in this case.
(d) Special ground 4 is not argued.
5. Finally, we might with propriety distinguish the case of Phillips v. State, 60 Ga. App. 622 ( 4 S.E.2d 698), which has been called to our attention. It needs but a casual reading of the indictment in that case to distinguish it from the one in the instant case. The indictment in that case reads: ". . . Phillips was charged with a misdemeanor for that he did 'drive and operate one certain International truck motor vehicle, on a public highway . . in such a manner as to endanger the lives and property of other persons due to the circumstances and conditions, by driving said truck at excessive speed back and forth across said road, and endangering the automobile . . and lives and limbs. . .'" It will be readily discerned from this case, written by Presiding Judge MacIntyre, that the allegation does not attempt to state what the "excessive speed" was, nor what the circumstances and conditions were, nor that it was wilful and wanton.
We feel that the statute now under consideration is a needful one to protect the public against reckless driving, and fills a gap not otherwise supplied by our motor-vehicle traffic statute.
The court erred in overruling the motion for a new trial for the reasons above stated.
Judgment reversed. MacIntyre, P. J., and Townsend, J., concur.