Bailum v. State

• Decision Date: 11 January 1921
• Docket Number: 6 Div. 746
• Citation: 17 Ala.App. 679,88 So. 200
• Parties: BAILUM v. STATE.
• Court: Alabama Court of Appeals

88 So. 200

17 Ala.App. 679

BAILUM v. STATE.

6 Div. 746

Court of Appeals of Alabama

January 11, 1921

Rehearing Denied Feb. 1, 1921

Appeal from Circuit Court, Jefferson County; H.P. Heflin, Judge.

James Bailum was convicted of manslaughter in the second degree and he appeals. Reversed and remanded.

Burden to show error is on accused.

While testifying the witness Mrs. A.C. Smith stated that the little girl had made her escape from the truck, and this evidence is told in narrative form in the record. The court excluded it as a conclusion.

R.D Arthur offered to testify that the truck had a governor attached to it which regulated the speed of the truck and which automatically cut off the gasoline and so controlled the speed of the truck, and that at the time that he saw the truck, the governor was properly functioning, but he did not know whether the governor was in the same condition at the time of the accident as when he saw it, and did not know whether he saw the truck before or after the accident, and if afterwards, how long.

Ellis & Matthews, of Birmingham, for appellant.

J.Q. Smith, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

BRICKEN P.J.

From a judgment of conviction for manslaughter in the second degree this appeal is taken.

The jury returned a verdict finding the defendant guilty under the second count of the indictment, which charged that the defendant "unlawfully, but without malice, or the intention to kill, killed Ruth Kate Thompson, by negligently running over, upon, or against her with an automobile truck."

The deceased, as shown by the evidence, was a small girl, six years of age, and was blind in her right eye, and the alleged accident occurred at or near the intersection of First avenue and Fifth (or Green) street, in Elyton, a suburb of Birmingham. The record appears to bear out the following statement of facts contained in the brief of the Attorney General, viz.:

"The testimony shows without dispute that a street car was going west, or from Birmingham, stopped at the intersection of these two streets, and the doors were open on the north side of First avenue for the purpose of admitting and discharging passengers; that the truck was traveling in the opposite direction, or toward Birmingham, with three passengers, the defendant, one Rowles, one Allen seated together, the defendant driving the truck so that it was partly on the south-bound track, which was six feet south of the track on which the street car was standing; that the deceased, a little girl six years of age, and blind in her right eye, started across said First avenue from the south side, and, having reached a point near the middle of the street, was either standing waiting for the street to be cleared or became frightened and jumped or ran backwards in front of the truck and was struck by it and killed. There is some conflict as to whether an auto was parked on the north side of the street car while standing, and also as to whether another automobile was coming behind and from the same direction as the street car, reaching the point where the street car was about the time it stopped. There is a tendency of the evidence to the effect that this automobile came up and swerved to its left or in the direction in which the child was standing, and that the child became frightened and went back south to a point in front of the truck."

The principles of law governing offenses of the character charged in this indictment have been so often stated it is not necessary to reiterate then here nor to elaborate upon them in any manner. Johnson v. State, 94 Ala. 35, 10 So. 667; Bynum v. State, 8 Ala.App. 79, 62 So. 983; Sanders v. State, 105 Ala. 4, 16 So. 935; Fitzgerald v. State, 112 Ala. 34, 20 So. 966; Benjamin v. State, 121 Ala. 26, 25 So. 917; Medley v. State, 156 Ala. 78, 47 So. 218; McGee v. State, 4 Ala.App. 54, 58 So. 1008; Tidwell v. State, 70 Ala. 33; Thompson v. State, 131 Ala. 18, 31 So. 725.

Another principle of law proper to be stated is that an automobile or motortruck is not excluded from the common right of the use of the public highways of this state, and the proprietor or operator thereof is only liable for the consequences of negligence in such use. The degree of care to be observed by the operator of such conveyances in a public highway is that care which a reasonably prudent man would observe under like circumstances. Hester v. Hall, 81 So. 361. In the case of Reaves v. Maybank, 193 Ala. 614, 69 So. 137, it was held that the highest degree of care is not exacted of operators of automobiles on public highways in this state.

"The simple rule is that drivers on the streets and pedestrians, each recognizing the rights of the other, are required to exercise reasonable care." Reaves v. Maybank, supra, and cases cited.

There were but few exceptions reserved to the rulings of the court upon the evidence.

On cross-examination of Mrs. A.L. Wilde, witness for state, the court would not permit the defendant to show by this witness that "the mother of the deceased child has sued Young & Vance for $100,000." There was no error in this ruling of the court. The question as framed could shed no light whatever upon the trial of the issues in this case, nor was it competent for the purpose of showing the interest of this witness as contended by defendant's counsel, as this witness had no connection with any of the parties, was not related to any of them, and in fact testified that she had never met either one of them. Nor was there any error in the other ruling of the court in connection with this witness' testimony.

The criticism of the court's ruling on the testimony of defendant's witness Mrs. A.C. Smith is not well founded. In the first place, the portion of the testimony objected to was clearly a conclusion on the part of this witness; the rule being that the witness could testify only as to the facts as she saw them, and it was for the jury to say as to whether the deceased had or had not "escaped from the truck." The insistence by defendant's counsel that the solicitor should have interposed an objection to the question which elicited this statement and should not be permitted to speculate upon the answer of the witness, while correct as a general rule, is not borne out here for the reason the record does not contain the question propounded which elicited this answer, and, it not appearing, we must indulge the presumption that this statement was volunteered by the witness, and was therefore properly excluded; it being manifestly incompetent for the reasons stated. The burden is upon

the appellant to affirmatively show error, and in the absence thereof it will be presumed there was none.

There was no error in the ruling of the court upon the testimony of defendant's witness R.D. Arthur. The court made it very clear to defendant's counsel that, if he could bring the testimony of this witness within the rule, by connecting it properly, and by showing its relevancy, the court would permit the witness to testify fully about the condition of the truck and the governor thereon, etc., but it appears that defendant was unable to so connect this witness' testimony. It was therefore incompetent, and the court correctly so held.

On cross-examination of the defendant while testifying as a witness in his own behalf, and over the objection of the defendant, the solicitor asked him the following question:

"Did you or not at that time know that it was against the law for you to run your truck at the rate of 15 miles an hour, pass a street car when it had stopped at a regular stopping place to let on and off passengers?"

This question was objectionable: (1) Because a defendant, as well as every one, is presumed to know what the law is, and therefore it was immaterial as to whether or not he was possessed of this knowledge at that time; (2) because the question assumed and gave the jury the impression that it was a violation of the law to run the truck at the rate of 15 miles an hour...