Commander v. State

• Citation: 374 So.2d 910
• Decision Date: 25 July 1978
• Docket Number: 4 Div. 613
• Parties: Charles Foster COMMANDER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 910

374 So.2d 910

Charles Foster COMMANDER v. STATE.

4 Div. 613.

Court of Criminal Appeals of Alabama.

July 25, 1978.

Rehearing Denied Aug. 29, 1978.

Jerry E. Stokes, Andalusia, for appellant.

William J. Baxley, Atty. Gen., and James F. Hampton, Asst. Atty. Gen., for the State, appellee.

BOWEN, Judge.

The prosecution grew out of a deplorable tragedy wherein the life of a thirteen year old boy was lost by having been struck by an automobile driven by this appellant. The appellant was convicted for murder in the second degree and sentenced to twenty years' imprisonment. Both here and in the trial court he is represented by court appointed counsel.

On the night of December 16, 1976, Mrs. Oma Jean Henderson and her four children were driving on Gaskin Road near the Alabama-Florida state line in Covington County. The left front tire on the automobile "blew out" and Mrs. Henderson pulled her car completely off the road. While she and her thirteen year old son, Hamilton Jackson (Jackie) Henderson, were changing the tire she noticed a car approaching behind them "a pretty good ways off". When Mrs. Henderson's fifteen year old daughter, Wanda, saw the automobile it was "a very good distance away" and she turned the headlights on. No one saw the actual crash as the automobile driven by the appellant rammed into the rear of the Henderson vehicle. Jackie Henderson was removing the spare tire from the trunk when the crash occurred and was killed instantly.

The Henderson vehicle was either pushed or knocked eighty feet down the road and turned sideways. The appellant's vehicle traveled sixty-eight feet after impact and ran off to the edge of the woods. The point of impact was determined to be three feet off the road. The road itself was a straight, unlined, two-lane county road. The evidence established that the appellant entered Gaskin Road at an intersection approximately one-half mile from the point of impact.

Mrs. Henderson was repelled away from her automobile by the collision. She sustained a broken leg and sent two of her children to seek help. Mrs. Henderson testified that she saw the appellant get out of his automobile and throw some bottles out of his car. She called to him and after two or three minutes he came over and asked if she was all right.

"I said, 'Yes, but you have killed my young'un'. He said, 'No, I hadn't killed nobody'. So, I could smell the alcohol around him and I told him. I said, 'You're drunk, ain't you'? He said, 'No lady, I'm not drunk, but I'm gonna be drunk'. And I told him next time he put a beer to his mouth, I hoped he could see what he had done there tonight."

The appellant then went and lay down near the Henderson automobile.

Walter Kenneth Parrish saw the Henderson children walking down the road. He took them back to the wreck and radioed for help on his C.B. radio. He stated that the appellant was "walking up and down the highway", "in shock or something". Mr. Parrish "got hold of him and stood him beside the car" until the deputy sheriff arrived. Mr. Parrish did not smell any alcohol on the appellant's breath.

After returning with Mr. Parrish, Wanda Henderson spoke with the appellant. "He said he was sorry he hit us and I told him that I knew he was and I was sorry too." She testified that the appellant appeared drunk and intoxicated, "when he was standing he was sort of swaying and when he talked he sort of had a thick tongue, and she could smell alcoholic beverage on him".

Paxton City, Florida, Police Officer Robert Hilton and Walton County, Florida, Deputy Sheriff Jack Leonard Guinn were the first law enforcement officers on the scene. They arrived between 7:30 and 8:00 o'clock P.M. These officers laid the appellant on the ground "as a precaution". Both men talked to the appellant and neither smelled any alcohol on his breath though there was "an odor of some sort of alcoholic beverage" in the appellant's automobile.

An ambulance from the Tri-City Rescue Squad arrived and took the appellant and Mrs. Henderson to the Mizell Memorial Hospital in Opp, Alabama. In the ambulance, the appellant said that "he tried every way he could to keep from hitting that young'un".

Max Marsh, a member of the rescue squad rode in the ambulance with the appellant and Mrs. Henderson. Marsh stated that the appellant "appeared to know what was going on and everything." "He was in a shocked state also", was bleeding from his mouth. Four or five times he asked about the condition of the Henderson boy. Though Marsh rode next to the appellant in the ambulance, he did not smell any alcohol on the appellant's breath.

Wanda Lloyd, a nurse at the hospital, testified that the appellant "appeared to have been drinking", that she "felt like he had been drinking", and that she "thought she smelled liquor on his breath".

Alabama State Trooper Hubert Anderson testified that he requested that a blood sample be taken from the appellant. Four days after the crash, Anderson returned to the scene and found three bottles of beer and two broken beer bottles about ten to fifteen feet from where the appellant's car had stopped. He stated that the accident occurred around 7:50 P.M. He did not estimate the speed of the appellant's automobile but testified that the appellant "was traveling at a high rate of speed". Yet he could not state that the car was going as fast as fifty or sixty miles per hour.

Over defense objection, Dr. G. R. McCahan, Jr., a state toxicologist, was allowed to testify to the results of a chemical analysis of a sample of the appellant's blood. McCahan stated that the alcoholic content of the appellant's blood was .13 per cent.

After the state rested its case and the trial court overruled defense counsel's motion to exclude the evidence, the appellant called his first witness.

Jimmy Wilkerson testified that the appellant came into his grocery store on Highway 331 between 5:00 and 5:30 P.M. on the day of the accident. Wilkerson stated that he smelled no alcohol on the appellant's breath and had no reason to believe that he had been drinking. The appellant took some pills at Wilkerson's store which the appellant said were "for diabetic purposes". He left around 6:00 o'clock P.M. From the store it would take the appellant about twenty to twenty-five minutes to get home. It was "considerably out of the way" for him to go home by the road on which the accident occurred but would then take thirty to thirty-five minutes. It should not have taken the appellant an hour to one hour and a half to arrive at the scene of the accident.

Dr. J. C. Dunn, a practicing physician in Opp, Alabama, examined the appellant at the hospital. The appellant was bleeding about the face and mouth and had some loose teeth. Dr. Dunn detected no evidence that the appellant had been drinking, found no outward signs of intoxication, and stated that the appellant could not talk very much on account of the injuries to his mouth.

Evidence presented by the defense revealed that the appellant had received a shot of Demerol and Vistaril at the Walton County Memorial Hospital around 11:30 o'clock on the morning of the accident for a headache. That morning the appellant had been to court concerning his divorce.

In rebuttal, state witness Don Mathews, an insurance adjuster, testified that he had investigated the accident and taken a statement from the appellant. The statement was admitted into evidence and corroborated the asserted fact that on the morning of the accident the appellant had been to court and then to the hospital for two shots for his headache. After receiving the shots the appellant went to his brother's house and slept all afternoon.

"When I woke up I felt much better. I left my brother's home around 7:00 P.M., and drove to Wilkerson Service Station, located just west of Liberty Community, Florida; on U. S. Highway 331. I left the Service Station around 8:00 P.M., and drove north on U. S. Highway 331 for five (5) miles, where I turned right on the Gaskin, Florida highway. After traveling about one mile on the Gaskin Highway, my car was involved in an accident. I was knocked unconscious and did not come to until early the next morning in Mizell Memorial Hospital, Opp, Alabama. All that I can remember is that my car hit something, but I do not remember what. I do not remember whether I had been drinking any alcohol or not during the day."

I

Initially the appellant contends that the trial court should have granted his motion to exclude the state's evidence for failure to prove a prima facie case of second degree murder.

It is settled that, in appropriate circumstances, a homicide committed by an intoxicated driver of an automobile may constitute murder in the second degree. Hyde v. State, 230 Ala. 243, 160 So. 237 (1935); Langford v. State, 354 So.2d 297 (Ala.Cr.App.), reversed, 354 So.2d 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.App. 18, 142 So. 441, cert. denied, 225 Ala. 219, 142 So. 442 (1932).

The argument that the gross negligence or wanton misconduct of the driver of an automobile causing the death of another constitutes either murder in the first degree or manslaughter but not second degree murder was rejected by the Alabama Supreme Court in Reed v. State, 225 Ala. 219, 142 So. 441 (1932) (see dissent of Anderson, C. J.).

Second degree murder is defined as the unlawful killing of a human being with malice, but without deliberation or premeditation. Miller v. State, 145 Ala. 677, 48 So. 47 (1906). In order to authorize a conviction for murder in the second degree for a homicide caused by the driving of an automobile, the evidence must be sufficient to warrant a finding by the jury that the accused either intentionally caused the collision or...