Berness v. State

Decision Date08 September 1953
Docket Number8 Div. 126
PartiesFrancis Louis BERNESS v. STATE.
CourtAlabama Court of Appeals

T. Eugene Burts, Jr., Florence, for appellant.

Si Garrett, Atty. Gen., and L. E. Barton, Asst. Atty. Gen., for the State.


This appellant was indicted for, and found guilty of murder in the second degree.

The State's evidence tended to show that the appellant and Claud W. Wright were together in Florence on the morning of December 19, 1951.

The two rode around in appellant's automobile and during the morning drank beer and whiskey. At the last place they stopped Wright took over the driving of the automobile, and they started for the home of appellant's father-in-law to deliver a pint of whiskey.

As they were travelling down a main highway, at a 'pretty fast' speed, the automobile struck and killed Miss Ella Wee Tays, 25 years old and crippled. At the time Miss Tays and a niece were walking about 4 feet off the paved portion of the highway, in the same direction as the automobile was moving, but on the opposite side of the highway. It was therefore necessary for the car to cross the entire highway and go out onto the shoulder in order to strike the girl.

Miss Tays was knocked some 22 steps through the air by the impact and death was instantaneous.

Wright stopped the car some 75 yards down the road and he and appellant returned to the scene. They stood around 10 or 12 minutes and left. According to appellant's statement, which was read in evidence by the State, someone in the crowd at the scene told them they could go.

After Wright and appellant had driven off they were followed and overtaken by some of the bystanders. They were told that they had killed a girl and should return. They agreed to do so, but at a crossroads took a road which did not lead back to the place of the accident. The appellant, in his statement above mentioned, attributed this to lack of familiarity with the area.

In the meantime the highway patrol had been notified and a patrolman found the men parked in front of a rural store and placed them under arrest.

The appellant offered no evidence in the trial below.

However, by a motion to exclude the State's evidence, timely made and appropriately grounded, and also by a request for the affirmative charge as to murder in the second degree, the appellant questioned the sufficiency of the evidence to sustain a conviction of murder in the second degree, in that the evidence showed that Wright, and not the appellant, was driving the automobile at the time it struck Miss Tays.

It is well settled under our decisions that where the accused is himself the driver of an automobile and drives it in a manner greatly dangerous to the lives of others so as to evidence a depraved mind regardless of human life, he may be guilty of murder in the second degree if his antisocial acts result in death of another, and this though he had no preconceived purpose to deprive any particular human being of life. Under such circumstances his acts are unlawful and without legal excuse, and malice may be inferred therefrom. Reed v. State, 25 Ala.App. 18, 142 So. 441; Williams v. State, 30 Ala.App. 437, 7 So.2d 511; Hyde v. State, 230 Ala. 243, 160 So. 237.

We have no cases in this State dealing with the factual situation presented by the present record, i. e. where the owner of an automobile permits a person he knows, or should know, is drunk, to drive it, and thereafter sits by his side while the second person drives it in such a manner as to cause death to another.

This factual situation has been presented to other courts, and in well-reasoned opinions these courts have concluded that under such circumstances the car owner may well be guilty of murder.

In Brewer v. State, 140 Tex.Cr.R. 9, 143 S.W.2d 599, the facts showed that the automobile causing the death of a third person belonged to the appellant. It was driven by appellant's companion, with whom appellant had been drinking. Appellant sat by his companion's side.

In affirming the conviction of murder the Texas Court wrote:

'We have held that an automobile is not a dangerous weapon per se, but when placed under the control of 'alcohol at the wheel and gasoline in the tank' and driven upon the highway, the results are so uncertain that the owner agreeing thereto may be held reasonable for the resulting death as though he himself had, with his own hands guided the wheel.' Brewer v. State, 140 Tex.Cr.R. 9, 143 S.W.2d 599, 601.

The court further observed that the acts of the appellant Brewer under the circumstances 'evidenced a heart regardless of social duty and fatally bent on mischief, meeting the legal definitions of that elusive term--malice.' To like effect is the doctrine of Banks v. State, 85 Tex.Cr.R. 165, 211 S.W.2d 217, 5 A.L.R. 600.

The Supreme Court of North Carolina, in State v. Trott, 190 N.C. 674, 675, 130 S.E. 627, 630, 42 A.L.R. 1114, sustained a conviction of murder where the facts showed that the appellant, while intoxicated, had directed his drunk companion to drive appellant's automobile. The car while so driven collided with another automobile, killing a passenger in the second vehicle.

The court pointed out that malice does not necessarily mean an actual intent to take human life, but may be inferential or implied when an act is done in such a manner as to indicate a depravity of mind and disregard of human life. The court further observed:

'Over the car (i.e., the owner) had absolute control; he had procured or assisted in procuring the whisky; and he was responsible at least in part for Michael's (i. e., the driver's) condition. After making Michael his chauffeur, and ordering him 'to get away' from the garage, he cannot now disclaim responsibility for the operation of the car under circumstances from which may be implied the malice that distinguishes murder in the second degree from the lesser crime of manslaughter.'

Although the offense charged in Story v. U. S., 57 App.D.C. 3, 16 F.2d 342, 344, 53 A.L.R. 246, was involuntary manslaughter, the court in the course of its opinion observed:

'If the owner of a dangerous instrumentality like an automobile knowingly puts that instrumentality in the immediate control of a careless and reckless driver, sits by his side, and permits him without protest so recklessly and negligently to operate the car as to cause the death of another, he is as much responsible as the man at the wheel.' (Emphasis supplied.)

It is our conclusion therefore that the court properly denied appellant's motion to exclude the State's evidence, and his request for charges, affirmative in nature, as to murder in the second degree for the reasons above set forth.

An incident occurred however during the course of this trial which, in our opinion, necessitates a reversal of this cause, which incident was fully brought to the court's attention by a motion for a new trial and hearing thereon.

After the hearing and arguments had been completed, but before the court had instructed the jury, the court declared a noon recess. The jury were permitted to separate, but cautioned by the court not to discuss the case either among themselves or with anyone else.

As appellant's attorney was returning to the court house after lunch, accompanied by another attorney, they observed on a corner near the court house several of the jurors in conversation with one of the State's main witnesses. There was also in the group Mr. Luther Tays, a distant relative of the deceased girl.

At the two attorneys passed the group one of them remarked 'There goes Berness' lawyer.' The two attorneys passed on down the street, and after discussing for a few minutes what they had seen, they proceeded to the chambers of the trial judge. Judge Hill was then in the Register's Office, which adjoins his private office, reading decisions in preparation for his oral charge. As to what occurred from this point we quote the following excerpt from Judge Hill's statement read into the record on the hearing on the motion for a new trial:

'At approximately 12:45 p.m. someone knocked on the door and I opened it and found that Mr. Eugene Burts, Attorney for the defendant, Berness, together with a friend of his, a lawyer, Mr. Emmett Roden, wanted to see me. They stated that they had seen one of the State's witnesses, towit: Mr. Grady P. Yancey, talking to one or more jurors on the southeast corner of the intersection of Court and Tennessee Streets, which point was visible from the office in which I was working and in which the three of us were then standing. They directed my attention through the window to the group, and I saw some men standing and talking, though I could not make out who it was. I then stated to Mr. Burts that I was very sorry this circumstance had arisen, that I had instructed and reinstructed the jury not to talk to anyone about the case, etc., but that I would go down there immediately and see what they were talking about and tell them that they should not talk to any witness in the case about any subject--or words to that effect. I do not remember whether the Attorney for the defendant made any reply to this suggestion on my part, or any statement whatsoever concerning it.

'I went to the corner in question and saw two or three jurors, whose names I do not remember, but Mr. Grady P. Yancey was not there at that time. I then told these jurors that it had been reported to me that a witness for the State had been talking to them on that corner a few moments before. I told them, in substance, that we had to be very, very careful about the actions of jurors during recesses in cases in court, and that they should not engage in conversation with any person who had been a witness in a case or who had anything to do with the case, or who might have any interest in the case one way or the other, and that they should not let any such person converse with them. I further...

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17 cases
  • Jolly v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 17 Marzo 1981
    ...313 (Ala.1977); McGhee v. State, 333 So.2d 865 (Ala.Cr.App.1976); Wright v. State, 41 Ala.App. 684, 49 So.2d 835 (1963); Berness v. State, 38 Ala.App. 1, 83 So.2d 607, affirmed, 263 Ala. 641, 83 So.2d 613 (1953); Williams v. State, 30 Ala.App. 437, 7 So.2d 511 (1942); Reed v. State, 25 Ala.......
  • Commander v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 25 Julio 1978
    ...313 (Ala.1977); McGhee v. State, 333 So.2d 865 (Ala.Cr.App.1976); Wright v. State, 41 Ala.App. 684, 49 So.2d 835 (1963); Berness v. State, 38 Ala.App. 1, 83 So.2d 607, affirmed, 263 Ala. 641, 83 So.2d 613 (1953); Williams v. State, 30 Ala.App. 437, 7 So.2d 511 (1942); Reed v. State, 25 Ala.......
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    • United States
    • Alabama Court of Criminal Appeals
    • 25 Julio 1978 interesting point of law, however, his contention is not supported by the Alabama case law by which we are bound. In Berness v. State, 38 Ala.App. 1, 83 So.2d 607, affirmed, 263 Ala. 641, 83 So.2d 613 (1953), the Court of Appeals, although reversing on another ground, "It is well settled......
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    • United States
    • Alabama Supreme Court
    • 11 Septiembre 1958
    ...definition of murder in the second degree although it is substantially identical with a statement in the opinion in Berness v. State, 38 Ala.App. 1, 83 So.2d 607. As used in that opinion the statement did not undertake to state a correct charge on, or even a definition of, murder in the sec......
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