Garner v. State
| Decision Date | 19 July 1949 |
| Docket Number | 6 Div. 828. |
| Citation | 41 So.2d 634,34 Ala.App. 551 |
| Parties | GARNER v. STATE. |
| Court | Alabama Court of Appeals |
T. K. Selman and P. L. Newton, of Jasper, for appellant.
A A. Carmichael, Atty. Gen., and Francis M. Kohn, Asst. Atty Gen., for the State.
Appellant's jury trial upon an indictment charging manslaughter in the first degree resulted in a verdict of guilty of manslaughter in the second degree.
The evidence presented by the State was directed toward showing that between 7:30 and 8:00 p. m. on September 18, 1948, Mr Grady Doughty was driving a tractor along a highway in Fayette County, Alabama. The tractor was 7 1/2 or 8 feet in width, and was pulling a mowing machine. There were two headlinghts, lit, on the front of the tractor, and on the rear, a light described in appellant's brief, and we think correctly, as
The automobile driven by appellant, and going in the same direction as the tractor collided with it, resulting in the death of Mr. Doughty.
In connection with the direction it was going, the tractor was about a foot to the right of the yellow center line of the highway at the time of the collision.
There was no testimony of eye witnesses to this collision, and the State's case is dependant upon circumstantial evidence.
The tractor's left rear wheel was torn loose by the impact, and was found some 40 steps on beyond the point of impact. When observed by investigating officers the appellant's automobile was pulled off on the side of the highway some 258 feet beyond the point of impact.
Ernest Wilson, and Woodrow Wilson, brother, observed the tractor and the appellant's automobile pass along the highway as they were about 75 yards from the highway on an intersecting road, the collision occurring about 100 yards down the highway from the intersection. Both testified that the two front lights and the rear light of the tractor were burning as they saw it pass, and that appellant's automobile was going 'pretty fast' when they observed it. According to Ernest Wilson:
There were two culverts under the highway in the area of the collision which occurred apparently just beyond one of the culverts, and over the second one.
At the conclusion of the State's case the appellant moved that the evidence be excluded, and the defendant discharged. The court overruled said motion, to which ruling the appellant duly excepted.
Unless the evidence palpably fails to make out a prima facie case, or on the other hand, if its tendencies at all support the charge made, or afford inferences to be drawn by the jury in support of the charge, it is properly left to the jury for determination of its weight. Way v. State, 155 Ala. 52, 46 So. 273; Tice v. State, 3 Ala.App. 164, 57 So. 506; Thomas v. State, 12 Ala.App. 293, 68 So. 549. Under the evidence presented in this cause it is our opinion that the court's action in denying appellant's motion to exclude the evidence and discharge appellant was properly denied. Furthermore, no grounds were assigned in support of the motion, and under such circumstances a lower court should not be put in error for its ruling. Perry v. State, 17 Ala.App. 80, 81 So. 858.
The defense presented only one witness in the trial below Mr. B. O. Hudson. The material portion of his testimony was to the effect that a tractor of the type driven by appellant is 8 feet in width.
Among the written charges requested by appellant and refused by the court was one affirmative in nature as to manslaughter in the second degree.
No motion for a new trial was filed in this cause.
Manslaughter in the second degree has been repeatedly defined as the unlawful killing of another human being, without malice and without the intent to kill or to inflict 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; Wilson v. State, 32 Ala.App. 591, 28 So.2d 646; Lightfoot v. State, 250 Ala. 392, 34 So.2d 619.
While there are no specifically defined limits as to the speed at which motor vehicles may be driven on the highways of this State...
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Carroll v. State
...was not in error in denying the motion to exclude the evidence, nor was the accused due the general affirmative charge. Garner v. State, 34 Ala.App. 551, 41 So.2d 634; Rainey v. State, 245 Ala. 458, 17 So.2d 687; Broxton v. State, 27 Ala.App. 298, 171 So. 390. In consonance with the familia......
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Smith v. State
...or improper manner." That definition has been used in: Wilson v. State, 32 Ala.App. 591, 28 So.2d 646 (1947); Garner v. State, 34 Ala.App. 551, 41 So.2d 634 (1949); Massengale v. State, 36 Ala.App. 195, 54 So.2d 85 (1951); Gill v. State, 37 Ala.App. 210, 65 So.2d 821 (1953); White v. State,......
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Hamilton v. State, 3 Div. 721
...We do not agree. This was an issue for the jury and the evidence in this case fully supports the verdict of the jury. Garner v. State, 34 Ala.App. 551, 41 So.2d 634; Graham v. State, Ala.Cr.App., 339 So.2d We have carefully searched the record for errors injuriously affecting the substantia......
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Stewart v. State
...No grounds were assigned in support of the defendant's motion to exclude the evidence and discharge the defendant. Garner v. State, 34 Ala.App. 551, 41 So.2d 634. Requested charege 'C' was properly refused. It pretermits the court's obligation to charge the applicable law to the jury, and i......