Barnett v. State

• Court: Alabama Court of Appeals
• Writing for the Court: SAMFORD, Judge.
• Citation: Barnett v. State, 27 Ala.App. 277, 171 So. 293 (Ala. App. 1936)
• Decision Date: 06 October 1936
• Docket Number: 6 Div. 748
• Parties: BARNETT v. STATE.

171 So. 293

27 Ala.App. 277

BARNETT v. STATE.

6 Div. 748

Court of Appeals of Alabama

October 6, 1936

Rehearing Denied Nov. 3, 1936

Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.

R.J Barnett was convicted of manslaughter in the first degree and he appeals.

Reversed and remanded.

Certiorari denied by Supreme Court in Barnett v. State (6 Div 46) 171 So. 296.

RICE, J., dissenting.

The following charge was refused to defendant:

"39--Before the jury can convict the defendant, they must be satisfied to a moral certainty, not only that the proof is consistent with the defendant's guilt, but that it is wholly inconsistent with any other rational conclusion; and unless the jury are so convinced by the evidence of the defendant's guilt, that they would each venture to act upon that decision in matters of the highest concern and importance to his own interest, then they must find the defendant not guilty."

F.D. McArthur, of Birmingham, for appellant.

A.A. Carmichael, Atty. Gen., and Francis M. Kohn, Asst. Atty. Gen., for the State.

SAMFORD, Judge.

However harrowing may be the details of this most lamentable incident, which resulted in the death of Miss Alverson, causes must be tried according to the rules of law as they exist, and are not to be construed or twisted to meet a certain state of facts. Lay v. State, 26 Ala.App. 458, 162 So. 319. The law of homicide has been the subject of the decisions of our courts from the beginning of our jurisprudence, resulting in well-defined rules known to all and not here necessary to repeat. These rules apply to the intent, the method, and manner of the homicide, and the division of the crime into four degrees.

As to the two degrees of murder and rulings applicable alone to them, it will not here be necessary to consider, for the reason that by the verdict of the jury the defendant was acquitted of them.

The defendant was convicted of manslaughter in the first degree over his insistence by request for the general charge that he could not be so convicted.

Under our statute, Code 1923, § 4460, manslaughter in the first degree is the voluntary depriving a human being of life. This statute has been the subject of many decisions of this court and of the Supreme Court, and the advent of the automobile on the roads and highways of the state has necessitated a further discussion of the law on the subject.

Manslaughter in the first degree as defined at common law and under statutes declaratory thereof consists in the unlawful killing of a human being without malice either expressed or implied. As applied to cases where persons are killed by automobiles, we have said that: "If there is evidence tending to show that the blow struck by the automobile being driven by defendant was intentional, or the automobile was being so driven as to evidence a wanton and reckless disregard of human life at the time and place and under the circumstances," this would be voluntary manslaughter. Curlette v. State, 25 Ala.App. 179, 142 So. 775, 776.

There is an entire absence of any evidence tending to prove that the defendant intentionally ran his automobile against the deceased.

That leaves us to the inquiry as to whether or not the automobile was at the time and place being driven by defendant with such wanton and reckless disregard of human life as to amount in law to an intentional killing.

The rule as laid down by our Supreme Court in civil cases is that the act done must be done with the consciousness that injury will probably result, in order to constitute wanton negligence, and such knowledge cannot be implied, from knowledge of the dangerous situation, but there must be a design to do a wrong, or a reckless indifference or disregard of the natural consequences of the act done. Merrill v. Sheffield Co., 169 Ala. 242, 53 So. 219; Brown v. St. Louis & S.F.R. Co., 171 Ala. 310, 55 So. 107. Again it is said: "Wanton injury must be predicated upon actual knowledge of another's peril, and a failure to take available preventive action, knowing that such failure will probably result in injury." Copeland v. Central of Georgia R. Co., 213 Ala. 620, 105 So. 809, 810. We constantly have before us the familiar illustration of a workman on a high building who intentionally throws a brick onto a populous street, where pedestrians are known to be or are likely to be, as being an act so disregardful of human life as to constitute the intent to take life. But it is held in a long list of cases in other jurisdictions and collated in note 18, 29 Corpus Juris, 1156, "an unintentional killing occasioned by the reckless and negligent driving of a motor vehicle may constitute involuntary manslaughter."

The facts necessary to prove such recklessness in the driving of an automobile so as to supply the intent, without which there can be no manslaughter in the first degree, must be proven by the evidence beyond a reasonable doubt. Curlette v. State, 25 Ala.App. 179, 142 So. 775.

Assuming that the deceased was struck by an automobile driven by defendant, as we read this record, there is no such evidence as would warrant the jury in finding the defendant guilty of such wanton and reckless driving of his automobile, at the time and place of the accident, as would constitute manslaughter in the first degree, and for that reason the court erred in refusing to defendant the charge instructing them that, if they believed the evidence, the defendant could not be convicted of manslaughter in the first degree.

There are facts from which inference may be drawn to sustain a conviction for manslaughter in the second degree (Code 1923, § 4460), and therefore the affirmative charge as to that degree of homicide was properly refused.

There are other questions presented by this record which we do not pass upon, for the reason that they probably will not arise on another trial.

The judgment is reversed and the cause is remanded.

Reversed and remanded.

RICE Judge (dissenting).

Appellant was convicted of the offense of manslaughter in the first degree, and his punishment fixed at imprisonment in the penitentiary for the term of five years. It was alleged in the indictment under which he was tried that he "killed Elizabeth Alverson by driving an automobile over, upon or against her."

It appears without dispute that Elizabeth Alverson, a young woman eighteen years of age, was struck by an automobile being propelled at a rate of speed sufficient to raise her body in the air about as high as a "man's head," and to knock it some 85 or 90 feet in the direction in which the automobile was going.

At the time...