Downey v. State

• Decision Date: 27 May 1941
• Docket Number: 2 Div. 691.
• Citation: 30 Ala.App. 285,4 So.2d 422
• Parties: DOWNEY v. STATE.
• Court: Alabama Court of Appeals

4 So.2d 422

30 Ala.App. 285

DOWNEY v. STATE.

2 Div. 691.

Alabama Court of Appeals

May 27, 1941

Rehearing Denied June 17, 1941.

Affirmed on Mandate Oct. 28, 1941.

Certiorari granted, by Supreme Court in Downey v. State (2 Div. 174) 4 So.2d 428.

George Pegram, of Linden, for appellant.

Thos. S. Lawson, Atty. Gen., and Jas. F Matthews, Asst. Atty. Gen., for the State.

BRICKEN Presiding Judge.

This appellant, defendant below, was indicted for the offense of manslaughter in the first degree, in that he unlawfully and intentionally, but without malice, killed Bettis DeLoach, by running into him with an automobile, etc.

The trial resulted in the conviction of the defendant of the offense of manslaughter in the second degree, and his punishment fixed at hard labor for the county for a period of 30 days. From the judgment of conviction this appeal was taken.

The trial court in its oral charge said, among other things, that under the evidence the defendant could not be convicted of manslaughter in the first degree; that the Solicitor for the State did not contend that the defendant could be convicted of manslaughter in the first degree, but the Solicitor did ask for a conviction at the hands of the jury of the offense of manslaughter in the second degree, etc.

It appears from the record that on the trial, this case was submitted to the jury upon the issue as to whether or not the death of the named deceased was proximately caused by the gross negligence of the defendant in the operation of his automobile at a high rate of speed over a public highway. The presiding judge of the court, in his oral charge to the jury said: "Now, gentlemen, in this case it is not necessary for me to discuss with you the evidence in the case, because you have heard that, it is all fresh in your minds. In this case the State contends that the defendant, Louie Downey, on the 14th day of September, 1937, and in Marengo County, Alabama, that this defendant was driving an automobile along a highway in this County at a high rate of speed, at an unusual rate of speed, and that at the time he was driving his automobile in that highway at that rate of speed, that he did not have due regard for the safety of others, dependent upon the condition of the road, the width of the road, the amount of traffic that was on the road, but that his traveling at the rate of speed at which he was traveling was grossly negligent, and that by reason of his gross carelessness by traveling at that rate of speed at the time and under the circumstances he was traveling at night, why, he is guilty of gross negligence, and in traveling or driving his automobile beyond the rate of speed required by law, and in not having his automobile he was driving under control, so as to prevent an accident, why, he killed, unfortunately, a citizen of your County, and that he is liable and should be punished."

At the conclusion of the oral charge, the defendant requested the following special written charge: "1. The court charges the jury if they believe the evidence in this case, they must find the defendant not guilty." The court refused to give said charge, and able counsel for appellant earnestly insists error to a reversal prevailed in this action of the court.

In opposition to this insistence the State contends: (1) That if the appellant, while under the influence of intoxicating liquors, drove a motor vehicle along a public highway and ran against deceased as a proximate result whereof deceased died, defendant was guilty of manslaughter in the second degree; and (2) that the evidence being in conflict as to whether defendant was under the influence of intoxicating liquors at the time of the accident, it was for the jury to pass upon his guilt or innocence upon the charge of manslaughter.

The highway laws of this State, of force and effect at the time the deceased was killed, provided: "Section 51. (a) Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing and no person shall drive any vehicle upon a highway at such speed as to endanger the life, limb, or property of any person." Genl. and Local Acts Alabama, Extra Session 1936, p. 235, Code 1940, Tit. 36, § 5(a).

The statute also provides certain rates of speed to be observed and complied with at certain places and under certain conditions, not here relevant, and declared it to be unlawful to violate any of its provisions. It is apparent, therefore, that under the laws of this State, it is unlawful for any person to drive an automobile upon a highway of this State at such speed as to endanger the life, limb, or property of another. So, if the defendant, at the time he struck and killed deceased, was driving his automobile upon a highway at such speed as to endanger the life or limb of deceased, or any other person, and the death of deceased was proximately caused by such unlawful act, then the killing may have amounted to manslaughter in the second degree, regardless of whether the driving of the automobile by the defendant was grossly careless, or grossly negligent. Rombokas v. State, 27 Ala.App. 227, 228, 170 So. 780, 781; Broxton v. State, 27 Ala.App. 298, 171 So. 390; Willis v. State, 29 Ala.App. 365, 197 So. 62; Sawyer v. State, 20 Ala.App. 504, 103 So. 309; Thompson v. State, 131 Ala. 18, 31 So. 725.

It is first to be observed, as applicable to the above statute, that the degree of care to be used by the driver of an automobile upon the highways of this State is that which a reasonably careful and prudent man would use under like conditions. Reaves v. Maybank, 193 Ala. 614, 69 So. 137. Whenever a shown, or proved, state of facts is such that reasonable men may fairly differ as to whether due care has been used, or not, or whether there was negligence or not, then the question is one for the jury. But where the facts are such that all reasonable men must draw the same conclusion from them, then the question of due care, or of negligence, must be considered one of law for the court. Reaves v. Maybank, supra; Sloss-Sheffield Steel & Iron Co. v. Willingham, 240 Ala. 294, 199 So. 28.

The concrete question to be decided by this court is,-does the evidence, shown by this record, in the court below, convince this court that the trial court erred in refusing to give the above noted written charge requested by the defendant? In answering this question the deplorable and tragic accident cannot, and should not, of itself be made the basis or premise from which the acts of the defendant should be determined, or his guilt adjudged. The answer to this question must be founded solely upon the evidence introduced upon the trial in the court below. Lay v. State, 26 Ala. App. 458, 162 So. 319.

The testimony introduced upon the trial of the case in the court below shows, that on the night of September 14, 1939, at a point in Marengo County, about 8 miles north of Thomasville, Clarke County, Alabama, on the Thomasville-Linden public highway, at an hour not earlier than 11 o'clock P. M. and not later than 1 o'clock A. M. the appellant, while driving his automobile along and over said highway, struck and killed DeLoach, the deceased named in the indictment. There were only two eye witnesses to the facts, this appellant and Roy Geiger, the driver of a pick-up truck, involved in the tragedy.

The testimony further showed, without dispute, that on said night the said Roy Geiger was driving said pick-up truck northward along said highway and when he reached the point on said highway where the accident occurred the lights on said truck went out suddenly, as testified to by him. At this time the deceased was a guest of the said Geiger, riding with him in said truck. According to the testimony of Geiger when the lights went out on said truck he turned to the right of said highway, but not off of the travelled portion thereof, and stopped or parked said truck in said highway. After he stopped his truck in the highway the said Geiger and Mr. DeLoach, his guest, got out of it, both of them, and without putting out any signal lights whatever, either in front or to the rear of said truck, and without making any effort to warn the travelling public of the presence and position of said truck in the highway, the said Geiger lifted the hood of the truck to see if he could discover the trouble. According to his testimony, on direct examination, "he was driving north and pulled to the right of the road and got out and lifted his (the truck's) hood, and Bettis, the deceased, got out and asked if he could help; that witness saw lights approaching from down the road and saw that he was coming pretty fast, but did not pay any attention to them; that he had his head down looking at the wire. That, as it, the car came up to them, it swung to the right of them and witness heard an impact and thought at first he (Louie Downey) had knocked the fender off or something but realized immediately he had hit Bettis; that Bettis was standing on the right side of the pick up truck and was practically out of the road. The car was eighteen inches from the side of the road, and Bettis was standing off of the road; that both witness's car and the other one which approached were travelling north, and that witness's car was eighteen inches from the road."

According to the above statement at the time of the impact DeLoach was standing at the right hand side of the truck and was practically out of the road. The witness heard an impact and first thought the defendant had knocked a fender off, or something. Other testimony showed, without dispute, that the Downey car left maroon colored...