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Involuntary manslaughter. Walker Superior Court. Before Judge Fariss.
(b) It is not error to refuse to give a requested charge which is not apt, legal, correct, precisely adjusted to some principle involved in the case and authorized by the evidence.
(c) Where, under the circumstances referred to in (a) the request is substantially covered in the general charge, denial of the request is not error.
2. (a) Where evidence is provisionally admitted over objection and there is no further objection or motion to rule it out, the objection made at the time of the provisional admission of it is waived.
(b) Where a witness relates facts upon which his opinion is based, the opinion is admissible whether the witness is an expert or not.
3. The evidence was ample to support the verdict. The general grounds of the motion for new trial are without merit.
Upon an indictment charging the defendant, James Wayne Cupp, with murder by an automobile, he was tried and convicted of the offense of involuntary manslaughter.
The evidence disclosed that at about midnight the deceased, Albert Crowe, went in his Renault car to get his wife when she got off from work at the Kenyon & Southern Mill in Rossville. He parked the car in the mill parking lot until his wife came and had difficulty in starting it for leaving. The two of them pushed it out into the street. It caught up and started as they left the lot, but stopped again. They started pushing again, Mr. Crowe at the left side with the door open so that when the car picked up enough momentum he could jump in and engage the gears for starting the motor, while Mrs. Crowe pushed from the rear. They were moving along the right side of Williams Street near the shoulder lying between the paved portion of the street and a ditch--going in the direction of town. There were indications that the battery was giving trouble. Both Mr. Crowe and his wife became tired from the effort of pushing the car and stopped for an interval of rest. He was either sitting on the left front fender or leaning against it, while Mrs. Crowe was at the back of the car. There was a street intersection a short way ahead and a street light hung directly over it that lighted up the area, including that where the Crowes and their car were stopped. Mrs. Crowe saw a vehicle approaching from the opposite direction on Williams Street traveling on its wrong side of the street the same side on which they were located. She apprehended that the driver was over on that side intending to make a left turn at the intersection, but when she saw that he was coming on through the intersection approaching their car head-on, she ran toward and fell into the ditch seeking a place of safety.
The approaching car had its headlights on. When it got to a point near the Renault it suddenly swerved to the left, but struck the left front of the Renault and Mr. Crowe. The Renault was turned completely around. Mr. Crowe was badly mangled, carried some distance down the street until the car turned over into the ditch, and was killed by the blow of the car driven by the defendant, Cupp. There was no other traffic anywhere in sight.
In his unsworn statement the defendant admitted that he had purchased a pint of Vodka "that night some time" with money that he borrowed from a friend at a filling station, but denied that he drank any of it. The bottle, which he admitted was in a paper sack in the car at the time Mr. Crowe was struck and killed, was partially empty, he explained, because he had given his friend, Doc Brown, a drink from it and Brown had, additionally, poured another drink into a container and kept it. Policeman Griffin, who made an investigation of the matter shortly after the occurrence, testified that he found a Vodka bottle, partially empty, and a Coca Cola bottle on the floorboard of the Cupp vehicle and that when he arrested Cupp later that night he asked him whether he had been drinking and how much he had drunk. "He said he had gone and bought some Vodka earlier that day and drank that, and some time during the day he'd gone back and bought some--he'd made two trips."
The defendant had been taking valium, a tranquilizing drug, which a doctor had prescribed for him some four days prior to this occasion. The druggist who filled the prescription testified that taking it was calculated to make one drowsy, might make him have double vision, and that drinking any alcohol in connection with or after taking it would greatly accentuate its effect, that because of this one taking the drug should avoid any drinking of alcohol and should avoid driving a car, and that if one taking the drug was experiencing drowsiness, or double vision it was an effect that he should recognize. Directions on the bottle, in accord with the doctor's prescription, were that the defendant should take one pill before each meal and one at bedtime.
Mrs. Magin, in whose home the defendant visited during the afternoon before the collision occurred, testified that he was taking the pills, two at a time. She identified the bottle as being the same he had with him and from which he took the pills--"some tablets that Dr. Simonton had prescribed." To the question, "Now, he never did take those pills other than the way the doctor told him to, did he?" she replied, "Sure he did." "Took them differently?" "Yes." She took a half of one of the tablets herself and it "almost put me to sleep in about three minutes." She testified that Cupp was not drunk that afternoon and that she smelled no liquor on his breath but that when he came he "talked real drowsy and sleepy," and that after taking some pills he lay down and slept hard for about 25 minutes, perspiring freely. She had difficulty in waking him, but did so and he left the house about 10 minutes of 5 o'clock. She talked with him over the telephone at about 11 that night and noticed that he then talked in a very drowsy manner.
A service station operator testified that Cupp was at his place during the afternoon and evening of that day, that he was taking the pills, two at a time, while there and that he warned the defendant that he was taking too many of the pills. The defendant had a "wild look" about his eyes. Although he had a pint of Vodka in the car and gave the service station operator two drinks from it, the defendant drank none of it while he was there.
In his statement the defendant said that he started taking the pills after getting the prescription filled, and then "just started taking more and more of them. I had taken several of the tablets that day. I don't know how many." He said that he had not been warned of the drug's effect by the doctor or the druggist, nor had he been advised that he should not drive a car when taking it. He asserted that while driving, prior to the collision, "I was sleepy, nervous and emotionally upset." Concerning what happened when he approached the place where he struck Mr. Crowe and the Renault car, he related: "Q. Do you remember approaching while you were driving your automobile, Williams Street, do you remember something that happened there? A. Well, I just saw a man out in the road, and I cut my car the other way. Q. Did you see any lights on? A. No sir. Q. Did you see a--do you remember seeing another car? A. I didn't see a light, no sir. Q. You saw a man out in the road doing what? A. Yes, sir, he just waved his hands like that (demonstrating). Q. Do you remember hitting something in the road? A. No, sir. Q. Do you remember having a wreck? A. No, sir. Q. What is the next thing that you do remember, what had happened? A. Well, all I can truthfully say is I remember what happened is when Mr. Griffin-Q. You remember what? A. Mr. Griffin and Ralph Jones came to the house. Q. Do you remember when they came to the house? A. Yes, sir. Q. Do you remember what happened to the period of time you walked or ever how you got to your home? A. No, sir. I don't. Q. Do you remember running over anyone, son? A. No, sir."
A request to charge, timely submitted, was: "When a person is suddenly put in the position of peril by the negligence of another, and where, under the circumstances, the emergency is so great that they have to act without having time to think, then a person confronted with such emergency is not held to as strict accountability as a person who has ample time to consider the circumstances and the situation." The request was denied, but the charge as given included the following: "A 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," and "I charge you that the mere fact that you may find from the evidence that the defendant was negligent in the operation of the automobile, if you do so find, without more, would not authorize you to find him guilty of any crime."
To the overruling of an amended motion for new trial the defendant excepts.
1. The first special ground of the amended motion assigns error upon the denial of the request to charge on the matter of emergency. Since there is no assignment of error complaining that the charge was not given in the exact language of the written request, this court will only consider whether the request was correct, apt, precisely adjusted to some principle involved in the case and authorized by the evidence; and, if so, whether the request was substantially covered by the general charge. Griffith v. Newman, 217 Ga. 533 (3) (123 SE2d 723); Dillard v. Jackson's Atlanta &c. Concrete Co., 105 Ga. App. 607, 608 (1) (125 SE2d 656); State Farm Mut. Auto Ins. Co. v. Rogers, 105 Ga. App. 778 (5) (125 SE2d 893); Burns Brick Co. v. Adams, 106 Ga. App. 416, 419 (127 SE2d 26); Butler v. Reville, 107 Ga. App. 345 (130 SE2d 161); Wells v. Metropolitan Life Ins. Co., 107 Ga. App. 826 (8) (131 SE2d 634); Boykin v. Parker, 108 Ga. App. 718 (3) (134 SE2d 531); Thornton v. Gaillard, 111 Ga. App. 371 (141 SE2d 771).
(a) Was the request correct, apt, adjusted to some principle in the case and authorized by the evidence? To put it another way, was any emergency shown to exist? If any was shown, was it an emergency of the defendant's own making of which he could not take advantage as a defense?
It would serve no useful purpose to repeat the evidence here, but a reading of it clearly demonstrates the absence of any emergency. The defendant, while under the influence of drugs, was simply driving down the wrong side of the street and ran into Mr. Crowe and his car. While it did not appear that the lights of the Crowe car were on and that he was probably having battery trouble, the defendant's lights were on, as was the street light, and Mr. Crowe and his car were plainly visible in either of them. It is assumed that the defendant operated a vehicle equipped with lights meeting the requirement of Code Ann. 68-1713. Georgia Cas. Co. v. McRitchie, 45 Ga. App. 697 (3) (166 SE 49). Certainly the deceased had done nothing to create any situation of emergency. Both he and his car were on their right side of the street, over next to the shoulder of it, standing still. There was nothing to indicate that he or his car was moving or about to move over to the other side of the street. While the defendant stated that the deceased was waving his hands, that could have been no more than a warning to the defendant as he approached on the wrong side of the street that he should bring his vehicle to a stop or change its course in time to avoid the collision that was about to occur. In doing that the deceased was in the performance of the ultimate of his duty to the defendant.
Automobile accidents generally occur suddenly, but suddenness alone is not sufficient to bring the emergency doctrine into play. If the driver has opportunity to exercise a deliberate judgment between alternate courses to pursue, no emergency arises in legal contemplation. Bloxom v. McCoy, 178 Va. 343 (7) (17 SE2d 401).
(b) Any claim of emergency on the part of the defendant can result only from his taking an excess amount of the drug which the doctor had prescribed, contrary to the directions on the doctor's prescription, as a result of which he became drowsy or sleepy and in that condition undertook to drive the car--drowsy to the extent that he traveled along the wrong side of the street until he was so close to a head-on collision with Mr. Crowe and his car that it was too late to turn, and despite Mr. Crowe's attempt at warning him.
"The emergency rule . . . is an application of the prudent man rule, and the sound view appears to be that one who, through no fault of his own, is confronted with a sudden peril and does things which afterward may seem to have been improper or foolish is not negligent if he does what a prudent man would or might do under the circumstances." Simpson v. Brand, 108 Ga. App. 393, 398 (133 SE2d 393). (Emphasis supplied). But if the driver of the car himself was the cause of the emergency, he can not take advantage of this principle of law. Cone v. Davis, 66 Ga. App. 229 (3) (17 SE2d 849). He must be without fault in the creation of the emergency of which he seeks to take advantage. Cf. Daniel v. State, 187 Ga. 411, 412 (1) (1 SE2d 6) and cases there cited.
The defendant, by his own admission, voluntarily took the tranquilizing drug in excess of the prescribed quantities and at times other than those prescribed for its use. Whether he had been warned of its effect or not, he was negligent in taking it in that manner. His condition was thus brought on by his own negligence. The vehicle he was driving was on the wrong side of the street because he drove it there. If he had remained on the proper side of the street neither an "emergency" nor a collision would have occurred. He was not free from fault. For these reasons the denial of the request was proper.
It may be pointed out that the request was deficient in other respects too, and did not meet the test of Cates v. Harris, 217 Ga. 801, 802 (125 SE2d 649); Cohen v. Sapp, 110 App. 413 (2) (138 SE2d 749). It assumed negligence of the deceased as an established fact, when that did not appear from the evidence. It assumed the existence of an emergency of a character "so great that they have to act without having time to think," and that did not appear from the evidence. It did not include as a part of the principle that the party claiming the benefit of the emergency must himself be free from fault in its creation. Without that, the request was not a correct statement of the law. A written request must itself be perfect, otherwise the refusal to give it will not be cause for new trial. Smithwick v. State, 199 Ga. 292 (7) (34 SE2d 28).
(c) Another reason that the denial of the request was not error appears from an examination of Kelly v. State, 63 Ga. App. 231, 239 (10 SE2d 417), where the defendant was similarly convicted. The request for a charge on the law of emergency in that case was different from that here only in that it included some of the facts which the evidence had shown. (The evidence, of course, in the two cases is not the same). The charge on accident as given in the general charge was substantially the same as was given here. Weighing the request and the charge as given it was held: "We think that the charge as a whole covered plainly and in substance the principles of law stated in the request to charge. The language in the request, framed in argumentative form and emphasizing selected facts in the defendant's interest, was not entitled to be adopted by the court, and the failure to give the charge in the language requested was not reversible error." (Emphasis supplied).
2. The remaining special ground of the motion assigns error upon the admission of the testimony of a police officer concerning what he found in his investigation of the matter as to the marks on the highway indicating where the Renault was located on the street, that it had been knocked around, and where the other vehicle had traveled and stopped after striking it. The objection was that the testimony was but a conclusion of the witness, since he did not see the collision happen, and that he had not qualified as an expert.
The transcript of the evidence discloses that when the objection was made to this evidence the court provisionally admitted it, saying at the time: "I don't know whether he knows or can testify as to facts--that is, as to what he saw there--on which he bases that evidence. If he can't do that, and can't testify as to facts he bases his opinion on, I think it is objectionable and I'll sustain it." With that observation the witness was permitted to go on with the testimony. The objection was never renewed nor was a motion to rule out his testimony ever made at any later time in the trial, as it was incumbent upon the objecting party to do, so as to secure an unconditional ruling on the objection. Smith v. State, 108 Ga. App. 275, 277 (132 SE2d 821); Wright v. State, 107 Ga. App. 800 (131 SE2d 566), and citations. Moreover, it does not appear from this ground of the amended motion that the witness failed, in his other testimony, to supplement the proof by stating facts which formed the basis of his opinions, but the record shows that the witness proceeded to testify as to skid marks made by the defendant's car after it struck the Renault, the distance it was from the Renault where it had stopped in the ditch, debris that fell on the street indicating the place of impact and where it was located, where Mr. Crowe's body was lying, etc., and that he identified photographs of the two vehicles made after the collision showing the damage and location of damage done to each. He had been a police officer of the City of Rossville for eight years. The facts to which this witness testified were sufficient as a basis for the admission of his opinion that the Renault had been struck on its left side and turned around in the street, that it had been "sideswiped" by the vehicle that came to a stop in the ditch and how it had traveled from the point of impact to the place in the ditch. Whether the witness qualified as an expert or not, he was entitled to give his opinion on these matters on the basis of those facts to which he testified. Lamb v. Sewell, 20 Ga. App. 250 (1) (92 SE 1011). No error appears.
3. The verdict was amply supported by the evidence. The overruling of the general grounds was proper. "Where, as here, the evidence is sufficient to show beyond a reasonable doubt that the defendant committed the offense . . . his conviction is authorized although the evidence does not exclude vague conjectures or remote possibilities of the defendant's innocence." Ivy v. State, 220 Ga. 699 (141 SE2d 541).
NICHOLS, Presiding Judge, dissenting. I must dissent from the ruling in Division 1 of the opinion as well as from the judgment of affirmance.
The first special ground of the defendant's amended motion for new trial assigns error on the refusal of the trial court to give a requested instruction to the jury. The requested charge was as follows: "When a person is suddenly put in a position of peril by the negligence of another, and where, under the circumstances, the emergency is so great that they have to act without having time to think, then a person confronted with such emergency is not held to as strict accountability as a person who has ample time to consider the circumstances and the situation." The evidence to support such charge was that the defendant was approaching the point of collision, which collision occurred at about midnight, when suddenly he was confronted with a man standing in the road waving his arms, that the defendant cut his automobile the other way and in so doing struck the decedent and his automobile which, while upon its own side of the road, was parked upon a public road during the nighttime without lights.
The evidence showed that the defendant's automobile finally came to rest in the ditch on his left side of the road, the side of the road on which the decedent's automobile had been parked. "A written request to charge which is legal and adjusted to a distinct matter in issue, and which may materially aid the jury, should be given in the language requested, although covered by other instructions of the charge in more general and abstract terms. Code Ann. Supp. 70-207 (Ga. L. 1937, p. 592); Werk v. Big Bunker Hill Mining Corp., 193 Ga. 217 (5) (17 SE2d 825); Summer v. Boyd, 208 Ga. 207, 209 (66 SE2d 51)." Randall v. State, 210 Ga. 435 (1) (80 SE2d 695); Vaughan v. Vaughan, 212 Ga. 485 (93 SE2d 743).
While to authorize a charge on emergency it must appear that the emergency was not the result of the defendant's own creation (see Simpson v. Brand, 108 Ga. App. 393, 398, 133 SE2d 393); yet the evidence need not demand such a finding in order to authorize such a charge. " ' "To justify a charge on a given subject, it is not necessary there should be direct evidence going to that point; it is enough that there be something from which a legitimate process of reasoning can be carried on in respect to it." Holland v. Long, 57 Ga. 36, 41 (3); King v. State, 77 Ga. App. 539, 540 (49 SE2d 196).' Pope v. Associated Cab Co., 90 Ga. App. 560, 561 (83 SE2d 310)." Carroll v. Hayes, 98 Ga. App. 450, 455 (105 SE2d 755); Brown v. Matthews, 79 Ga. 1 (4 SE 13).
It is argued that the defendant caused the emergency by driving at a time when he had been taking a tranquilizer drug prescribed by a physician but not in accordance with such physician's instructions.
A physician, a witness for the State, testified on cross examination that a person taking any drug has a right to know the reaction of the drug and how to protect himself, and the only way that he would have of knowing, as to whether it was dangerous or not dangerous or as to the effect it might have at the given moment, would be the advice of his doctor.
Should the jury have determined that the defendant's condition was not voluntarily created, which it could have done under the evidence, then the "emergency" was not created by the defendant and the requested charge on "emergency" was authorized by the evidence as was recognized in Kelly v. State, 63 Ga. App. 231, 238 (10 SE2d 417), although there was other testimony showing no such emergency.
In Kelly v. State, supra, after recognizing that a charge on emergency would be authorized when applicable in a criminal case, the court held (1) that the request in that case was argumentative and, (2) that it was substantially covered by the general charge.
The request in the case sub judice was not argumentative, assumed no facts and contained only a proposition of law which was authorized by the evidence.
Assuming arguendo, under the decision of the Supreme Court in Griffith v. Newman, 217 Ga. 533 (3) (123 SE2d 723), and the cases of this court following it, that in order to invoke the ruling in Werk v. Big Bunker Hill Mining Corp., 193 Ga. 217, supra, and similar cases (that a proper request to charge must be given in the language requested), the assignment of error must allege that the trial court erred in failing to give the request "in the exact language requested" otherwise where the general charge in substance covers the applicable law requested no error is shown, the charge in the present case covering "accident" and "simple negligence" did not substantially cover "emergency." So much of the decision in Kelly v. State, 63 Ga. App. 231, supra, which holds to the contrary is in conflict, in principle at least, with the decision of the Supreme Court in Bass v. State, 152 Ga. 415 (7) (110 SE 237), where a charge on accident was given and it was held that if additional instructions were desired they should have been requested. Here they were requested. While an event occurring as a result of an "emergency" may well be an "accident" because under such circumstances the act done as a result of the "emergency" is not then negligence (culpable neglect)' necessary in a criminal prosecution, yet "emergency" is a specific application of the law of "accident" and it cannot be said that a defendant is not entitled to a charge on "emergency" when properly requested merely because the court charged generally on "accident." In the broadest sense possibly a charge on "accident" in a criminal case covers "emergency" and in the absence of a request it would not be reversible error to fail to charge in a proper case on "emergency," yet a charge on "accident" is not a charge on "emergency" in substantially the language requested.
In Everett v. Clegg, 213 Ga. 168 (97 SE2d 689), the Supreme Court, speaking through Mr. Justice Almand, set forth proper instructions dealing with "emergency" and held that a charge on "accident" was not authorized where the evidence showed the plaintiff's injuries were caused solely by the plaintiff's negligence, solely by the defendant's negligence, or by the negligence of both. "Accident" denotes a lack of any negligence. See Code Ann. 102-103, and citations, while "emergency" and the charge requested denote a situation caused by the negligence of someone, other than the defendant, whereby the defendant was placed in the position of making a choice without time for proper deliberation. The charge on "emergency" was authorized by the evidence which authorized a finding that the automobile of the deceased was parked in violation of the Act of 1953 (Ga. L. 1953, Nov. Sess., pp. 556, 606; Code Ann. 68-1710 (b)). While there was evidence that a street light was overhead there was no evidence that it provided sufficient light to reveal a person or object within five hundred feet so as to exclude the deceased from the requirements of such Code section. This evidence, together with the statement of the defendant that upon seeing the deceased waving his hands he immediately cut to the other side, the side where the automobile was parked, was sufficient to authorize the requested charge.
I am authorized to say that Frankum and Russell, JJ., concur in this dissent.
Cook & Palmour, Bobby Lee Cook, Lindsay H. Bennett, Jr., for plaintiff in error.
SUBMITTED MARCH 2, 1965 -- DECIDED MAY 21, 1965.
Friday May 22 20:52 EDT

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