Fields v. State, 1 Div. 857
| Decision Date | 10 June 1986 |
| Docket Number | 1 Div. 857 |
| Citation | 494 So.2d 477 |
| Parties | Douglas Eugene FIELDS v. STATE. |
| Court | Alabama Court of Criminal Appeals |
The original opinion in this case, dated May 14, 1985, is withdrawn, and the following is substituted in its place.
Douglas Eugene Fields was indicted in two separate indictments by the Mobile County Grand Jury at its September 1982 session for vehicular homicide in violation of § 32-5A-192, Code of Alabama 1975. In one indictment, he was charged with unlawfully causing the death of William Clark McKee while engaged in the violation of a state law applying to the operation of a vehicle, and in the other indictment he was similarly charged with unlawfully causing the death of Rebecca Jean Williamson while engaged in the violation of a state law applying to the operation of a vehicle. The acts alleged in both indictments arose out of a single incident, an automobile collision involving two vehicles, which occurred on December 4, 1981. At the time of the collision, Williamson was a passenger in the automobile driven by appellant, and McKee was the driver and lone occupant of the other vehicle. The indictments were consolidated for trial and Fields was found guilty as charged in both indictments by a jury on April 5, 1984. On May 15, 1984, Fields was sentenced to serve three years in the penitentiary in each case, and it was ordered that the sentences run concurrently. This appeal followed.
The tendency of the State's evidence was that appellant was driving at a speed in excess of what would have been reasonable under the circumstances at the time of the collision, that he veered suddenly into the left lane of the highway into the path of an oncoming vehicle driven by victim McKee; that the point of impact of the vehicles was in McKee's lane, and that appellant was under the influence of alcohol at the time. No issue is presented on appeal as to the sufficiency of the evidence to support the verdict.
First, appellant contends that the trial court committed reversible error in denying his motion to dismiss the indictments. He argues that the indictments were defective because they failed to give him sufficient information to determine exactly what the charges were against him. He bases this argument on the fact that the indictments did not inform him of the specific intoxicant he allegedly had ingested prior to the accident. He relies on Smith v. State, 435 So.2d 158 (Ala.Cr.App.1983).
An indictment must contain all the elements of the offense charged, and also must sufficiently apprise a defendant of what he must be prepared to meet. Hardy v. State, 409 So.2d 996 (Ala.Cr.App.1982).
Omitting the formal parts, the indictments are as follows:
Section 32-5A-192(a), provides as follows:
"(a) Whoever shall unlawfully and unintentionally cause the death of another person while engaged in the violation of any state law or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic shall be guilty of homicide when such violation is the proximate cause of said death."
The statute requires the State to allege and prove, inter alia, that the defendant "while engaged in the violation of any state law or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic" caused the death of someone, and that the violation of such law or ordinance was the proximate cause of said death. The issue here is the specificity required in alleging the violation of the state law applying to the operation or use of the vehicle. An indictment which merely tracked the statutory language would be insufficient because the appellant would not know which violation of the numerous state laws or municipal ordinances applying to the operation of a vehicle was the proximate cause of the death. Had the indictments in the instant case merely tracked the language of the statute and recited the code section (§ 32-5A-192(a)), Smith v. State, supra, would be analogous; however, Smith is distinguishable from the case at bar. In Smith, the intoxicant was an element of the offense, and failure to aver it rendered the information void. Here, the intoxicant is not an element of the offense of vehicular homicide.
The indictments in the instant case sufficiently aver the statutes violated, i.e., driving while intoxicated or, in the alternative, reckless driving. They adequately inform appellant of which state laws or municipal ordinances applying to the operation of a vehicle he is being accused of violating. In our opinion, it was not necessary here to allege the intoxicant involved, and the failure to do so did not mislead appellant or hamper his ability to defend himself. It is noted that during the hearing on the motion to dismiss the indictments, the prosecuting attorney informed appellant that the State would attempt to show that he was intoxicated on alcohol at the time of the collision.
We find that the indictments in the instant case were proper in form and substance, being sufficient in and of themselves to fully apprise appellant of the crimes for which he was charged, as well as with what he must have been prepared to defend against.
After submission of the instant case on appeal, this court in another case held the homicide by vehicle statute unconstitutional on the ground that, by its punishment provisions, it made the offense both a misdemeanor and a felony. Whirley v. State, 481 So.2d 1151 (Ala.Cr.App.1985), cert. quashed, 481 So.2d 1154 (Ala.1986). After release of the opinion in Whirley, appellant herein filed a supplemental letter brief with this court claiming that our decision in Whirley was dispositive of the instant case. The record in the instant case discloses that this issue questioning the constitutionality of the statute was raised in the lower court and is now properly before us for review.
The homicide by vehicle statute 1 applicable in the instant case was enacted in 1980, and it provides, in pertinent part, as follows:
"(b) Any person convicted of homicide by vehicle shall be fined not less than five hundred dollars ($500) nor more than two thousand dollars ($2,000), or shall be imprisoned in the county jail not less than three months nor more than one year, or may be so fined and so imprisoned, or shall be imprisoned in the penitentiary for a term not less than one year nor more than five years."
1980 Ala.Acts 604, No. 434, § 9-107 (1980).
After release of our opinion in Whirley on January 8, 1985, the State petitioned the Supreme Court of Alabama for a writ of certiorari. We delayed deciding the instant case, pending the outcome in Whirley. The Supreme Court denied the petition for writ of certiorari in Whirley on April 26, 1985, and we released our opinion referred to above in the instant case on May 14, 1985, holding the homicide by vehicle statute unconstitutional on the basis of our reasoning in Whirley. On June 4, 1985, the Supreme Court set aside its order of April 26, 1985, denying certiorari in Whirley; placed the petition on rehearing ex mero motu; and granted the writ of certiorari. On June 6, 1985, we ordered the instant case placed on rehearing ex mero motu on authority of the order of the Supreme Court of June 4, 1985, in Whirley. On January 10, 1986, the Supreme Court quashed the writ of certiorari in Whirley as having been improvidently granted, and did not address the issue concerning the constitutionality of the statute, due to a procedural error committed by the State. Whirley v. State, 481 So.2d 1154 (Ala.1986).
On November 12, 1985, in Newberry v. State, 493 So.2d 993 (Ala.Cr.App.1985), we again held the homicide by vehicle statute unconstitutional because it authorizes both misdemeanor and felony punishments for the same offense. In so holding we relied upon Whirley and our opinion of May 14, 1985, in the instant case. The Supreme Court of Alabama granted certiorari in Newberry and reversed this court's judgment on April 18, 1986, holding that the homicide by vehicle statute is not unconstitutional because it authorizes both misdemeanor and felony punishments for the same offense. The Supreme Court held that the statute does not violate the guarantees of Article 1, Section 6, of the Alabama Constitution, because, from a reading of the statute, a defendant could be reasonably apprised of the accusation against him or her and the possible penal consequences. State v. Newberry, 493 So.2d 995 (Ala.1986).
Thus, the decision of the Supreme Court in Newberry is dispositive of this issue in the case at bar. The statute is not unconstitutional because it provides both possible misdemeanor and felony punishment for...
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