Anderson v. State

• Decision Date: 10 November 1959
• Docket Number: 2 Div. 16
• Parties: Lewis Lloyd ANDERSON v. STATE.
• Court: Alabama Court of Appeals

Page 397

120 So.2d 397

40 Ala.App. 509

Lewis Lloyd ANDERSON v. STATE.

2 Div. 16.

Court of Appeals of Alabama.

Nov. 10, 1959.

Rehearing Denied Dec. 1, 1960.

Fred D. Gray, Montgomery, and Peter A. Hall and Orzell Billingsley, Jr., Birmingham, for appellant.

MacDonald Gallion, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

CATES, Judge.

Anderson has appealed his conviction of first degree manslaughter. The verdict also carried ten years' imprisonment.

The first principal point relates to the sufficiency of the evidence, and whether two witnesses were competent to testify as to the speed of an automobile.

A second question is grounded on the allegation that, in Dallas County, Alabama, there was, at the time of indictment (January 29, 1959) and the time of trial (February 27, 1959), a systematic exclusion of Negroes from juries with a consequent denial to Anderson, a Negro, of the equal protection of the law guaranteed him under the State Constitution and under the Fourteenth Amendment to the Constitution of the United States.

Viewed from the verdict (as we must take the facts on appeal, Jones v. State, 33 Ala.App. 451, 34 So.2d 483), the case made by the prosecution was as follows:

On January 20, 1959, prosecution witnesses saw Anderson driving a car along Minter Street in Selma headed east. His speed was between sixty and seventy miles per hour. ¹

Minter was an unpaved street in a well populated residential neighborhood. The defendant testified the weather was 'damp' and that Minter 'is a somewhat of a bad street most of the time but whenever it rains it is a somewhat of a deplorable condition for driving.'

When Anderson got to the corner of Church Street, he ran into the front bumper and hood of a green Chevrolet headed north on Church, which had stopped on the south edge of the intersection. The impact spun the Chevrolet to its right 180 degrees from its first heading.

Forward momentum took Anderson's car down Minter Street. It swung first to the right (i. e., to the south side of the street), then caromed to the left off some stone blocks on the north edge of the carriageway. As it began to swing again to the right, it hit Tom Reese who was walking across (or had just crossed) the street and had got at least beyond the middle of the left lane of traffic. ² The car carried Reese along on its hood for several feet, then after he fell off, it ran over him, all the while swerving again to the right or south side of the street. Then back in the road again, it went on to the end of the block where it hit a tree, bounced four feet in the air and turned over.

Reese had both arms and his left leg broken, an open wound ran around his abdomen from his right side and his intestines were outside.

Anderson was indicted for second degree murder. The true bill acted also as a charge of voluntary and involuntary manslaughter.

The defense was to the effect that Anderson had driven all along Minter Street at a moderate speed. He testified he was crossing Church Street at fifteen miles per hour when the Chevrolet driven by Mike Howard came at him. He recalled no more of the happening.

Anderson's physician testified the wreck had caused traumatic retrograde amnesia. The defense implied Anderson probably pressed on the accelerator while he was unconscious.

The State's showing Anderson's driving at high speed on a damp unpaved (and seemingly slick surfaced) street in a will populated area, hitting and running over a pedestrian in the left lane of travel, and the circumstance of the distance of some 396 feet his car went forward after an apparently violent collision, together with the force of its bounce when it hit the tree, made out a prima facie case of that appreciated disregard of the results of wanton conduct from which death ensues, which is one definition of voluntary manslaughter.

Intent to kill is but an alternative ingredient: the same state of mind can be imputed from conduct wanton and reckless toward human life. The likelihood of another's being imperiled by the wanton conduct, no less than actual knowledge, makes for culpability, thus supplying mens rea in voluntary manslaughter. Rainey v. State, 245 Ala. 458, 17 So.2d 687; Gills v. State, 35 Ala.App. 119, 45 So.2d 44. 'Wantonness may be predicated upon conduct occurring before a discovery of the peril. * * *' Lawson, J., in Buchanan v. Vaughn, 260 Ala. 482, 72 So.2d 56, 57.

Anderson has cited a number of civil and criminal decisions for the proposition that, for a killing to be first degree manslaughter, where there is no direct evidence that the act was done wilfully, the State must show it was done with consciousness that injury would probably result from the act, and such knowledge cannot be implied from the knowledge of danger, rather there must be a 'design' to do wrong, or a reckless indifference or disregard of natural consequences of the act done. We have carefully considered these cases and have noted discussions of them in decisions as late as Nixon v. State, 268 Ala. 101, 105 So.2d 349 (a murder case), and Smith v. State, Ala.App., 109 So.2d 853.

We have concluded that the Rainey case, supra, is still the law and represents a reexamination and a refinement in the law of manslaughter, and one which this court and the lower court are constrained to follow.

Moreover, we consider the Rainey case to be the natural and correct corollary of the principles theretofore developed as to what may evidence intent in voluntary manslaughter. The two following quotations, we believe, will illustrate this development:

'It is insisted on motion for new trial that there is no evidence of an intent to kill, and, in the absence of such evidence, the defendant cannot be convicted of manslaughter in the first degree. The law governing homicide is not so narrow. If a person knowingly and consciously drives a high-powered automobile at an excessive rate of speed along the public highway, where other vehicles and pedestrians are liable to be and the driver's vision is obstructed by clouds of dust and the sun is shining in his face, and at a point where he must pass a road machine which takes up at least half the road and death results to a pedestrian walking along the highway, a jury would be justified in finding that the offense was manslaughter in the first degree * * *'--Reynolds v. State, 24 Ala.App. 249, 134 So. 815, 817.

'Without an intent to kill there can be no murder, or manslaughter in the first degree. (Citing case.) It is not required that there be a positive or specific intent to kill to constitute manslaughter in the first degree. (Citing cases.) This for the reason that where an accused's conduct or act of violence which ordinarily in the usual course of events would result in death or great bodily harm to another, and a death does result, the accused must be deemed to intend the probable results of such act, i. e., that he intended to kill. * * *'--Smith v. State, supra .

The statement in the Rainey case has been expressly quoted with approval in the following criminal appeals: Clayton v. State, 36 Ala.App. 175, 54 So.2d 719 (pistol killing); Harris v. State, 36 Ala.App. 620, 61 So.2d 769 (automobile manslaughter); Hanby v. State, 39 Ala.App 392, 101 So.2d 553 (automobile manslaughter).

Whether or not a motorist has amnesia when striking a pedestrian is ordinarily not a matter to be determined by his testimony alone; rather it is a jury question. People v. Henry, 23 Cal.App.2d 155, 72 P.2d 915. So that, while certain defense witnesses may not have seen Anderson steering his car, the testimony of State witnesses that they did see him, coupled with the presumption of continuity arising from the undisputed fact that he was the driver at the time of the collision, made out a jury question.

Had there been a both-to-blame collision, Reese's death could be laid to Anderson. The cause and effect question under the theory of the defense could still have supported the verdict had the jury chosen to believe that Anderson was driving sixty to seventy miles per hour. Howard's contributory negligence would not absolve Anderson. Hanby v. State, 39 Ala.App. 392, 101 So.2d 553.

Therefore, we consider that, as a matter of law, the trial judge properly overruled Anderson's motion (made when the State rested) to exclude the evidence. After both sides rested, the defense took no exception to the oral charge, nor did it move for any charge affirmative as to either first or second degree manslaughter. The trial judge charged murder out, both in writing and in his oral direction.

The State produced two witnesses, Frank L. DuBose and Peter Wolff, who were standing on the corner of Minter and Mabry and saw Anderson driving 'pretty fast,' and that he ran into a stopped car, zigzagged across the street, and hit a tree and turned over. Neither witness noticed the car striking Reese.

Both at the trial and on appeal, a great deal has been made of the lack of testimonial qualifications of these witnesses as competent to express judgment on the speed of Anderson's car. The State brought out that the witnesses had ridden in automobiles. Although neither of them could drive, each had watched speedometers while riding and had seen traffic along city streets. Excerpts from their testimony appear below. ³

The rule of our decisions is that the speed of an accustomed object is a subject largely of common observation rather than reserved for expert opinion.

As stated in Vredenburgh Saw Mill Co. v. Black, 251 Ala. 302, 37 So.2d 212, 218:

'It is well settled that the average witness does not have to have expert knowledge to testify to the speed of a vehicle in ordinary or common use. The fact that the witness McKinley had never driven a truck or automobile did not disqualify him from giving testimony as to the speed of the truck. The credibility of the testimony was for the jury.'

See also Williams v. Roche Undertaking Co., 255 Ala. 56, 49 So.2d...