Rainey v. State, 7 Div. 763.

• Citation: 245 Ala. 458,17 So.2d 687
• Decision Date: 20 April 1944
• Docket Number: 7 Div. 763.
• Parties: RAINEY v. STATE.
• Court: Supreme Court of Alabama

17 So.2d 687

245 Ala. 458

RAINEY v. STATE.

7 Div. 763.

Supreme Court of Alabama

April 20, 1944

Wm. N. McQueen, Acting Atty. Gen., and Geo. C Hawkins, Asst. Atty. Gen., for petition.

Hood Inzer, Martin & Suttle and L.B. Rainey, all of Gadsden opposed.

FOSTER, Justice.

There are two situations on certiorari to the Court of Appeals from this Court to review their opinion in respect to the facts shown by the record. They present different theories for such review, but both are resolved by applicable principles of law. One of them subjects for review the legal effect of the evidence stated by the Court of Appeals to be shown by the record, regardless of their inferences from it.

Given the evidence as recited by the Court of Appeals, the question is, what is its legal effect? As on this appeal, that question is usually presented by a ruling in the trial court on a request for the affirmative charge. When we pass on the legal effect of the evidence as justifying the requested charge, we do not review any factual finding by the Court of Appeals, nor their judgment as to the weight of the evidence. Craft v. Standard Accident Ins. Co., 220 Ala. 6(12) 123 So. 271; Frick Co. v. Monroe, 220 Ala. 1, 123 So. 262; Lancaster v. State, 214 Ala. 2(5), 106 So 617.

If the evidence is not set out in the opinion of the Court of Appeals its finding as to what the evidence shows is conclusive on our review, whether or not the question relates to the affirmative charge (Mobile Pure Milk Co. v. Coleman, 230 Ala. 432, 161 So. 829); but whether such finding justifies the affirmative charge as a matter of law is reviewable. If the evidence is set out in the opinion, we will review its sufficiency to justify the affirmative charge, though the Court of Appeals may have made a finding of facts from that evidence.

The other theory is based upon the finding or conclusion of the Court of Appeals as to the weight of the evidence, and from it a factual conclusion is declared. The result so reached being one of fact not of law, our review is limited to the question of whether the Court of Appeals reached the correct legal result from such finding.

This question is often presented to the trial court by a motion by the unsuccessful party for a new trial on the ground that the verdict is contrary to the great weight of the evidence and therefore unjust, and should be set aside. The trial judge must first make a ruling on that question, and on appeal to the Court of Appeals that court will draw its own conclusion from the evidence, giving the traditional presumption resulting from the conclusion of the trial court. When the Court of Appeals thus finds, we do not review that finding (New River Coal Co. v. Files, 215 Ala. 64, 109 So. 360), though we will review its application to the law, when that situation is presented.

We have in this case an illustration of both aspects of a review. The Court of Appeals has set out in their opinion the substance of the evidence which tends to support a conviction, and has held that no aspect of that evidence justifies a finding that defendant was guilty of manslaughter in the first degree. That presents a legal question to us on certiorari. That is, whether or not the jury was authorized to draw the inference of guilt.

But a different status exists as to a review of the holding by the Court of Appeals that the verdict of the jury was contrary to the great weight of the evidence and should have been set aside by the trial court. Recognizing that such holding by the Court of Appeals is not subject to review on certiorari by this Court, the Attorney General has not asked that we do so.

The defendant complains that the jury was not clearly instructed by the trial court as to the elements of wantonness in its relation to manslaughter in the first degree. That defendant did not intentionally kill the deceased is claimed to be manifest from the evidence, and that it is not shown that he wantonly did so, when wantonness is properly defined and understood. Assuming that the evidence does not show a positive intent to kill, our only concern in reviewing the request for the affirmative charge is whether or not the evidence was such as to justify a submission of the question of a wanton killing to the consideration of the jury.

Defendant correctly concedes that a wanton killing is a voluntary killing within the definition of manslaughter in the first degree. Section 320, Title 14, Code of 1940. A positive intent to kill is not necessary. Harrington v. State, 83 Ala. 9, 3 So. 425; Williams v. State, 83 Ala. 16, 3 So. 616.

It is said in those cases that when there is an act of violence from which ordinarily in the usual course of events death or great bodily harm may be a consequence, the killing which results is voluntary. This has specific reference to the consequences of an intentional injury without an intentional killing. The statute defining manslaughter in the first degree, as pointed out, uses the word "voluntary". Those cases hold that an intentional injury from which death results is not a voluntary killing unless death or great bodily harm ordinarily in the usual course of events may be expected to result. That principle is what those cases were dealing with. They were not directly considering wantonness as the equivalent of intention. They were considering a willful injury, not a wanton injury. They presuppose an intentional act of violence on the person injured. But to be a voluntary killing, an act of violence intentionally directed at another is not necessary. The statute which...