Crisp v. State

• Decision Date: 27 October 1925
• Docket Number: 6 Div. 560
• Citation: 21 Ala.App. 449,109 So. 282
• Parties: CRISP v. STATE.
• Court: Alabama Court of Appeals

109 So. 282

21 Ala.App. 449

CRISP v. STATE.

6 Div. 560

Court of Appeals of Alabama

October 27, 1925

Rehearing Denied Jan. 12, 1926

After Mandate, May 25, 1926

Rehearing Denied June 29, 1926

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

B.W Crisp was convicted of manslaughter in the second degree, and he appeals. Reversed and remanded after mandate from Supreme Court.

Rice J., dissenting on original hearing.

Samford J., dissenting in part from extended opinion.

These charges were refused to defendant:

"(12B) If you believe from the evidence in this case that First avenue, at the point where the deceased was struck, was a muchly traveled highway by motor vehicles, and that this was open to ordinary observation, and that the deceased came from a place of safety on the sidewalk between two parked automobiles onto the highway and attempted to cross it without looking for approaching motor vehicles, and that he had no reasonable excuse for not looking, then such conduct on the part of the deceased was negligence."

"(17) In order to make out a case against the defendant that would authorize you to find him guilty as charged, the court charges the jury that it is incumbent upon the state to satisfy the jury from the evidence in the case beyond a reasonable doubt, that the defendant was guilty of something more than simple negligence merely on the occasion complained of."

"(24) The court charges the jury that under the evidence in this case any person operating an automobile at the point where the deceased was killed had the right to presume that no adult person would rush out suddenly from between two parked automobiles in dangerous proximity to an approaching automobile."

"(27) If you believe from the evidence in the case that, on the occasion of the deceased's death, the defendant became so frightened as that he was unable to avoid striking the deceased, and that the accident would have been averted had the defendant not become frightened, and that the deceased's death was the sole proximate result of the defendant becoming frightened and losing control of himself, then you must find defendant not guilty."

"(29) The court charges the jury that the law presumes that the defendant has testified truthfully in this case, and that it is your duty to reconcile his testimony and the testimony of all the other witnesses in the case with the presumption that he is innocent, if you can reasonably do so."

Horace C. Wilkinson, of Birmingham, for appellant.

Harwell G. Davis, Atty. Gen., Lamar Field and Thos. E. Knight, Jr., Asst. Attys. Gen., and Jim Davis, Sol., and Willard Drake, Asst. Sol., both of Birmingham, for the State.

BRICKEN P.J.

The appellant was charged with and convicted of manslaughter in the second degree.

The indictment charges that the appellant unlawfully, but without malice or intention to kill, killed Elmer Paul Jacobs by negligently running over, upon, or against him with an automobile, against the peace and dignity of the state of Alabama.

A jury fixed the appellant's punishment at hard labor for the county for five months, and the appellant brings the case here for review.

In his oral charge to the jury, the learned trial judge instructed them as follows:

"Now, is he guilty or not guilty as charged in the indictment? The evidence here tends to show that the deceased was killed by this defendant striking him or running over him with an automobile or truck, an auto truck. Did he violate the law when he ran upon him or ran over him with the truck? Was he violating the law at that time? Was he running at a greater rate of speed than the law permitted him to run? If he was, he would be guilty as charged in the indictment."

The appellant reserved an exception to the following part of said charge:

"Was he running at a greater rate of speed than the law permitted him to run? If he was, he would be guilty as charged in the indictment."

It is now urged by appellant (1) that the mere violation of a speed ordinance, without more, by the operator of an automobile, is not sufficient to support a conviction of manslaughter in the second degree; (2) that the portion of the charge, to which exception was reserved, eliminated all questions of the proximate cause of the killing, and eliminated appellant's theory of an unavoidable accident; and (3) makes a mistake in judgment on the part of appellant amounting to crime.

Section 21 of the Motor Vehicle Law (Acts 1911, p. 642), in force and effect at the time this appellant was indicted and convicted, provides as follows:

"Speed permitted: No person shall operate a motor vehicle upon the public highways of this state recklessly, or at a rate of speed greater than is reasonable and proper, having regard to the width, traffic and use of the highway, or so as to endanger property, or the life or limb of any person; provided that a rate of speed in excess of thirty miles per hour for a distance of a quarter of a mile shall be presumed evidence of traveling at a rate of speed which is not careful and prudent."

An ordinance of the city of Birmingham, referred to in the oral charge of the trial court, of which the courts of the state are required to take judicial notice, in section 42, provides:

"It shall be unlawful for any person to drive or cause to be driven any motor vehicle upon any public highway in the city of Birmingham at a greater rate of speed than the following:

"(a) At or over any street intersection, 12 miles per hour.

"(b) Between intersections in the loop area, 18 miles per hour.

"(c) Elsewhere, other than places enumerated under (a) and (b) of this section, 25 miles per hour; and it shall be unlawful for any person to so operate any motor vehicle upon the highways in the city of Birmingham as to be unable to prevent striking any pedestrian or vehicle upon such highway."

The concrete question is thus presented to this court by the exception to the court's oral charge: Does the violation of a speed regulation, without more, resulting in the death of a person on a highway, constitute manslaughter in the second degree?

In Alabama it is well settled that a violation of a statute or an ordinance is negligence per se. Watts v. Montgomery Traction Co., 175 Ala. 102, 57 So. 471.

But homicide may result from carelessness of such low degree or trivial character in the performance of a lawful act, carelessly performed, as not to involve criminality in the person so carelessly performing the act. Fitzgerald v. State, 112 Ala. 34, 20 So. 966. While the violation of a speed regulation is negligence per se, it is not per se such gross or wanton negligence as is necessary to constitute manslaughter in the second degree where death results. In the case last cited, our Supreme Court said: "A consideration of the principles upon which criminal responsibility for the results of carelessness rests will impress the student 'with the general truth, that in the criminal department, as well as in the civil, our law, under proper circumstances, declines to take into its account things trivial and small.' *** Our own adjudications are in line with these texts, and always predicate criminality, not upon mere negligence or carelessness, but upon that degree of negligence or carelessness which is denominated 'gross,' and which constitutes such a departure from what would be the conduct of an ordinarily careful and prudent man under the same circumstances as to furnish evidence of that indifference to consequences which in some offenses takes the place of criminal intent. Thus, in Hampton v. State, 45 Ala. 82, it is said: 'There must be a criminal intent or negligence so gross as to imply it.' And in White v. State, 84 Ala. 421, 423 [4 So. 598], is this language: 'Gross carelessness, even in the performance of lawful acts, is punishable, if another is injured thereby.' There can, we therefore think, be no doubt upon authority and principle that homicide may result from carelessness of such low degree or trivial character in the performance of a lawful act as not to involve criminality in the person so carelessly performing the act; and it follows that criminality cannot be affirmed of every lawful act, carelessly performed, and resulting because of such carelessness in the death of another. The carelessness must be aggravated, so to speak; it must be gross, implying an indifference to consequences."

In 29 C.J. p. 1154, § 141, the text declares the law to be as follows:

"Negligence. In general. As has been noted, involuntary manslaughter may consist in the doing of a lawful act in an unlawful manner, and hence, where an unintentional homicide is occasioned by the gross or culpable negligence of defendant, although in the commission of an act lawful in itself, it is manslaughter, and under some statutes involuntary manslaughter is defined as including a homicide in the commission of a lawful act without due caution or circumspection. While the kind of negligence required to impose criminal liability has been described in different terms, it is uniformly held that it must be of higher degree than is required to establish negligence upon a mere civil issue, and it must be shown that a homicide was not improbable under the facts as they existed which should reasonably have influenced the conduct of accused."

In State v. Clark, 196 Iowa, 1134, 196 N.W. 82, the Supreme Court of Iowa very recently had this question before it, and in disposing of it said:

"In effect the jury was told that a violation of this ordinance was such an unlawful act as would render the defendant guilty of manslaughter if the death of Edna Morgan resulted by reason thereof. Clearly the driving of the car at a rate of speed in violation of a city ordinance would not

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