Echols v. State

• Citation: 55 So.2d 522,36 Ala.App. 302
• Decision Date: 08 August 1950
• Docket Number: 8 Div. 907
• Parties: ECHOLS v. STATE.
• Court: Alabama Court of Appeals

Page 522

55 So.2d 522

36 Ala.App. 302

ECHOLS v. STATE.

8 Div. 907.

Court of Appeals of Alabama.

Aug. 8, 1950.

Rehearing Denied Oct. 31, 1950.

Reversed on Mandate Nov. 27, 1951.

S. A. Lynne, of Decatur, for appellant.

A. A. Carmichael, Atty. Gen., and L. E. Barton, Asst. Atty. Gen., for the State.

The following charge was refused to defendant: '3. The mere fact that the defendant was driving on the wrong side of the road and after having taken two drinks of whiskey would be but simple negligence and does not constitute willful or wanton misconduct.'

HARWOOD, Judge.

Under an indictment charging murder in the second degree this appellant has been found guilty of manslaughter in the second degree.

The prosecution grew out of the death of Nella June Maples, a girl 15 years of age, who was struck by a truck while riding a bicycle on or by a highway in Morgan County on 13 October 1947.

Evidence introduced by the State tended to show that Nella June Maples, and her nephew, Ralph Blankenship, were returning to their home around seven o'clock P. M. after visiting relatives. Each was riding a bicycle, proceeding easterly along the highway, and near the south edge. Blankenship was riding about four feet in front of Nella June. The night was dark but Nella June held a burning flashlight in her left hand, and there was a red reflector on the rear of her bicycle.

As to the actual collision, Blankenship testified:

'A. When we left Mrs. Puckett's house, we come on up the road about a quarter of a mile, and I saw the truck coming over the hill, and he was coming pretty fact, and I looked back and he approached up pretty close; and I looked back and I saw he was coming towards us, and I told June to look out; and I looked where I was going, and about that time he hit her.

'Q. You saw some lights coming over the hill? A. Yes.

'Q. You say you saw the vehicle coming towards you? A. Yes.

'Q. What did you say to June? A. I said: 'Look out, June!'

'Q. At that time, did she have the light on? A. Yes.

'Q. At that time, were you in front of her or in back of her? A. In front.

'Q. At the time you hollered or spoke to her, was she,--how far behind you was she? A. About the same distance; about three or four feet behind me.

'Q. Was she on the highway or off the highway? A. She was off. When we saw this truck coming, we got off.

'Q. Off of the highway? A. Yes, sir.

'Q. And that was on the right-hand side of the highway? A. Yes.

'Q. That is the south side of that highway, isn't it? A. Yes, sir.

'Q. And when you spoke to her, what did you do? A. I turned around and looked where I was going.

'Q. And then what happened? A. The truck hit her.'

Immediately after the accident Blankenship was unable to locate Nella June. He went for help. Later she was found fifty feet from her bicycle, about three feet off the pavement, severely injured, and died on the way to the hospital.

Blankenship further testified that in his opinion the truck was going about 40 miles per hour at the time it struck deceased.

Sergeant W. B. Little, and Gordon Griffin, members of the State Highway Patrol, testified that on 15 October they went to appellant's home and examined appellant's truck. They found scratches on the fender which had recently been covered with a greasy substance. One or two hairs were found clinging to the body of the truck. These were later turned over to Mr. C. D. Brooks, Assistant State Toxicologist.

The appellant was taken into custody.

After a proper predicate had been established tending to show its voluntary character, Sergeant Little testified as follows concerning statements made by the accused during the drive into Decatur:

'A. About five miles out on 67, there hadn't been anything said from the time we left the jail until about five miles out, and he leaned over on the back of the seat and asked me did I think they would electrocute him for doing it, and I told him I never knew of them electrocuting any man for that kind of crime. And he said: 'There is no need of going any further. I run over her and killed her.'

'Q. Did he say he was drinking? A. He said 'I was pretty full and I knew you all would be out there, and I couldn't afford for you all to see me in that shape, and I kept going;' said he went on down to Somerville and turned left and went north to his home.'

Mr. Brooks, Assistant State Toxicologist, after sufficient establishment of his qualifications, testified that the hairs turned over to him by Patrolman Griffin matched hair turned over to him by the mortician who had prepared deceased for burial, the mortician having testified as to the securing of this hair from the head of deceased.

Mr. Brooks gave further testimony as to the matching qualities of particles of paint he found on appellant's truck, and paint taken from deceased's bicycle.

Further evidence was presented by the State directed toward showing that appellant had stopped at a filling station at around 7 o'clock on the night of this accident, the filling station being about 5 miles west of the scene of the collision. At this time appellant appeared to be drinking; he held onto his truck as he walked around it; talked with a thick tongue; and after paying for his purchase once he attempted to pay a second time.

In his own behalf the appellant testified that he first observed the deceased as she was riding about midway of the highway, and approaching his truck, some sixty feet away. He cut down on his gas, and as he got near the bicycle and rider it turned to his side of the road. He cut to his left, and not hearing any noise, or feeling any jolt he continued on. Appellant claimed he did not know he had struck the bicycle.

Appellant asserted he was scared and excited when taken into custody by the patrolmen, and would not say whether he had or had not made the statement attributed by them to him. At the trial he maintained he was not under the influence of liquor in any way at the time of the accident, as he had taken only two small swallows of whiskey with acquaintances during the morning.

A witness for the defense testified that he had passed the Maples girl and Blankenship boy shortly before this accident, and when he passed them he did not see any light displayed by either one.

The defense also presented several character witnesses. A number of rulings made by the court during the examination of these witnesses, are, in our opinion, the only rulings on admission or rejection of evidence that invite discussion.

During the cross-examination of defense witness Lyle Cain, who had testified as to appellant's good character and reputation, the record shows the following:

'Q. In your opinion, Mr. Cain, does a man who, by his own admission, drives a motor vehicle in an intoxicated condition on a public highway at night, bear a good reputation?

'Mr. Lynne: We object to that.

'Mr. Shanks: That is within the evidence, and correctly hypothesised.

'Court: Overruled.

'Mr. Lynne: We reserve it.

'A. I wouldn't think so.'

The record further shows that during the cross-examination of the very next witness for the defense, C. T. Watkins, likewise a character witness, substantially the identical question was addressed to him as had been asked Mr. Cain, with the following rulings and instructions by the court:

'Q. In your opinion, is a man who, by his own admission, has driven a motor vehicle on a public road at night in an intoxicated condition, such a person that bears a good reputation?

'Mr. Lynne: We object to that question, because it is evasive of the province of the jury; it calls for an opinion about a matter which is controverted, because----

'Court: I am going to sustain it.

'Mr. Shanks: I am asking for an admission by the defendant, which, as I understand, stands undenied and uncontradicted at this point, and which, if it did, I would still be entitled to question about it.

'Court: I am going to sustain it, and rule it out on the other witnesses, too.

'Court: Gentlemen, that isn't evidence.'

Questions predicated upon facts developed by State's witnesses, and which could rationally refer only to the accused, are not a proper method of proving reputation, for it is an attempt to show character by particular acts. A character witness' testimony is confined to general reputation of the accused in the community in which he lives. Gray v. State, 21 Ala.App. 409, 108 So. 658; Way v. State, 155 Ala. 52, 46 So. 273; Mullin v. State, 31 Ala.App. 571, 19 So.2d 845, 847; Smith v. State, 25 Ala.App. 79, 141 So. 265.

It appears from the record as shown, supra, that the court excluded the evidence improperly admitted during the examination of Mr. Cain, by its rulings during the examination of Mr. Watkins, and instructed the jury that such testimony was not in evidence. No reversible error therefore resulted from this instance.

The record further shows that during the redirect examination of Mr. Cain he testified he had had connection with many citizens of his and appellant's community by virtue of operating a gin, and knew virtually every one in the east end of the county, and that he had never at any time heard anything against the appellant. This latter portion of Mr. Cain's testimony was excluded on motion of the Solicitor.

Negative evidence of good character, that is that a competent character witness has never heard anything against an accused is, and has been for a long time in this jurisdiction, considered as a highly satisfactory method of proving character and reputation. See Everage v. State, 33 Ala.App. 291, 33 So.2d 23, and cases cited therein in. Standing alone, the court's ruling in excluding this type of character evidence was erroneous. It appears however that on his main direct examination Mr. Cain had given positive testimony as to appellant's good character and reputation. We cannot see therefore that this appellant was probably injured in his substantial rights by the exclusion of this testimony which...