Daly v. State
| Decision Date | 11 January 1972 |
| Docket Number | 8 Div. 57 |
| Citation | 47 Ala.App. 681,260 So.2d 412 |
| Parties | Jerome DALY v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Cervera & Folmar, Troy, for appellant.
MacDonald Gallion, Atty. Gen., and W. Mark Anderson, III, Special Asst. Atty. Gen., for the State.
The appellant was convicted in the Circuit Court of Limestone County of manslaughter in the second degree and sentenced to ninety days imprisonment in the county jail. From this judgment he appeals.
The State's evidence tends to show that appelllant spent the afternoon of August 8, 1968, in and around Rainey's Tavern in Elkton, Tennessee, which is a short distance over the Alabama state line; that later in the afternoon, after having eaten super with one of his friends, he came back to the tavern for a short while; and that he then started for home driving his sister's 1961 cream colored Ford automobile.
It appears that during the afternoon and up until he finally left the tavern to go home he had drunk several beers. The exact number was more or less in doubt but there was some evidence that he was under the influence of alcohol when he started home. On his way home he was stopped and his driver's license was checked by two local deputies near the overpass where the traffic leaves the interstate highway going to the Elkton Road. The deputy sheriffs who stopped him allowed him to continue on his way but he was followed for some distance by a patrol car driven by Trooper Patterson of the State Patrol. Patterson testified that appellant's automobile was at times weaving back and forth on the road; that he and his partner, Auxiliary Trooper Padgett, did not stop appellant, who later turned off a side road toward his home; that within a short time, the patrolmen had their attention called to an automobile which was taking Rickey Daly, a young boy who had been struck by a car, on an emergency run to the hospital; and that the partolmen guided this automobile to the hospital.
The State's testimony further tends to show that Rickey Daly, his brother Jeff Daly, and Kenneth Hunter were walking along the Elkton Road on the right side and off the used portion of the road when an automobile approached from the rear, ran off the used portion of the road some short distance, and struck Rickey Daly, whereby he was injured and later died from the injuries suffered. At the time he was struck, the injured boy was carrying some groceries and a carton of soft drinks. Some of the soft drink bottles were broken by the impact and the fluid was spilled out. The witnesses, Jeff Daly and Kenneth Hunter, testified that the car was tannish in color and had big round tail lights and was moving at a rapid rate of speed. Some of the testimony tended to show that the car was travelling at approximately seventy miles per hour.
It further appears from the State's testimony that this accident happened at about 8:30 in the evening of August 8, 1968. All of the witnesses for the State, and the appellant himself, testified that the car was either beige, cream colored or light tan and that it was a 1961 Ford.
Later in the evening State Trooper Patterson and Sergeant Hancock, a State Investigator, talked with appellant at his home. To questions asked by Trooper Patterson appellant gave answers of a negative nature that if he had hit someone he didn't remember it, and that he must have hit a mail box somewhere to put the dents found in the fender and hood on the right side of the car. According to the testimony of Trooper Patterson the appellant made the voluntary statement, 'What was that kid's name I hit?'.
One of the State Toxicologists, Dr. Vann V. Pruitt, Jr., testified that he examined the automobile on the night of the accident and found sticky brown colored substance on the fender and right side of the car. He stated that he could not identify this substance. He said that he found dents in the fender and hood of the car and a small amount of paint ground into the injured boy's trousers which matched a sample of the paint which he took from the car.
The appellant denied that the automobile he was driving struck the boy and set up an alibi, which was supported by his witnesses, that at the time of the occurrence he had already reached his home and was engaged in preparing his National Guard equipment for active duty the next day. He did not deny that he drank some beer during the afternoon and did not deny driving along the road where the boy had been struck, but emphatically denied any participation in the act.
The testimony is voluminous and this Court will not attempt to go into further detail.
'Manslaughter in the second degree is defined as the unlawful killing of another human being, without malice and without the intent to kill or to inflict the injury resulting in death, but accidentally committed by the accused while he was doing an unlawful act amounting to a misdemeanor, or accidentally committed by the accused while he was doing a lawful act, but in a grossly negligent or improper manner.' Jones v. State, 21 Ala.App. 234, 109 So. 189.
When the State rested its case, the appellant made a motion to exclude the testimony, which motion was overruled by the court. Under the tendencies of the evidence for the State, the motion was properly overruled and the case submitted to the jury.
After the verdict was given the appellant filed a motion for a new trial, which was overruled.
The appellant insists that the case should be reversed because of the failure of the State to prove venue. This is a matter which may be proven by circumstantial evidence and there is some evidence in the record tending to prove the location in Limestone County, Alabama, but aside from this the matter was not called to the court's attention before argument by a request for the affirmative charge based on this failure by the State to prove venue. This matter cannot be raised for the first time by a motion for a new trial or an appeal. Rule 35, Circuit and Inferior Court Rules, Tit. 7, Appendix, Code of Alabama, 1940, as recompiled 1958; Richardson v. State, 39 Ala.App. 207, 98 So.2d 59, cert. denied 266 Ala. 699, 98 So.2d 65; Payne v. State, 40 Ala.App. 493, 115 So.2d 670.
State's witness Padgett, an Auxiliary Trooper who was riding with Trooper Patterson on the night of this occurrence, testified that while he was standing in the yard of the home of appellant near the white Ford car, the appellant walked up to him and said, without any other words being spoken by either of them, 'What was the kid's name I hit?'. According to Padgett, he did not interrogate or talk with appellant at all. Padgett further testified that this occurred after Officer Hancock had read appellant's constitutional rights to him from a card.
Appellant argues error by the court in admitting the testimony of Trooper Patterson of statements made by appellant when questioned by Patterson at the home of appellant after the occurrence. The record shows the following testimony by Patterson outside the presence of the jury:
'BY MR. NELSON:
The statements admitted over objection were, when asked if he struck a child, 'If I did, I don't remember it,' and, 'I must have hit a mail box.' These answers were negative in nature. However, it appears that the Miranda rule was complied with and there was no error by the court in admitting the testimony. Elrod v. State, 281 Ala. 331, 202 So.2d 539; Beverly v. State, 281 Ala. 325, 202 So.2d 534.
Before the testimony was offered the attorney for appellant had examined the witness with regard to this matter on voir dire out of the presence of the jury and no objection was made on voir dire to the ruling of the court. Alleged error in the admission of evidence cannot be raised for the first time by motion for a new trial or on appeal. Smith v. State, 40 Ala.App. 600, 119 So.2d 202, cert. denied 270 Ala. 741, 119 So.2d 203.
In brief, the attorney for appellant complains of the actions of the prosecuting attorney in asking illegal questions and reflecting on the conduct of one of the attorneys for the appellant.
We have examined the matters complained of as shown by the record. Objections were sustained to...
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