Gilliam v. State, 6 Div. 962
| Decision Date | 01 November 1955 |
| Docket Number | 6 Div. 962 |
| Citation | 89 So.2d 584,38 Ala.App. 420 |
| Parties | Stancel J. GILLIAM v. STATE. |
| Court | Alabama Court of Appeals |
Richard O. Fant, Jr., Tuscaloosa, for appellant.
John Patterson, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State.
The indictment charged murder in the second degree. Appellant was convicted of manslaughter in the first degree and was sentenced to serve six years in the penitentiary.
Without dispute in the evidence at about 6:00 P.M. on April 8, 1954, on the Oliver Dam Road in the town of Northport, DeWitt Kenneth Perdue, a child nine years of age, was struck and killed by an automobile driven by appellant. The road was straight and level for some distance in both directions from the point of impact.
It is also undisputed in the evidence that defendant, who was employed in a Tuscaloosa garage, had been to Dwight Deal's home to repair the brakes on Mr. Deal's truck. Mr. Deal lived 100 yards or more south of the residence of deceased's grandfather, L. S. Williamson, where deceased and his parents were living.
Shortly before the collision, deceased and seven other children were playing in the driveway of the Rushing home. The State's evidence tends to show that several children had been playing in this driveway nearly all afternoon of the day in question. The appellant testified that he did not see any children in this driveway when he drove past it on the way to the home of Mr. Deal.
Upon leaving Mr. Deal's home the defendant drove back toward Northport on the Oliver Dam Road. At this time deceased's mother called him and he ran across the road toward the spot where she was standing in the Williamson yard. Appellant's automobile struck the deceased, inflicting injuries from which he died some 9 hours later.
The State's evidence tended to show that defendant's rate of speed was about 50 miles per hour and that the automobile carried the child some seventy-five to ninety feet from the point of impact and threw him off into the Williamson yard, turned to the left and ran about 20 feet before it came to rest on the opposite side of the road, with the front wheels off the pavement and the rear wheels in the road.
The State's witnesses testified that defendant was under the influence of intoxicating liquors; that he leaned against his car for some time; that he staggered and had the odor of intoxicating liquor on his breath; some empty bottles that had contained whiskey were found in the automobile.
The evidence for defendant tends to show that he had imbibed only two cans of beer at noon and that he was not drunk at the time of the collision. The defendant testified he was driving at a speed of about 30 miles per hour and that he first saw the child when it was only 30 feet away as it ran in front of his automobile.
There was evidence to the effect that appellant's view was obstructed immediately before the collision by a hedge along Mr. Rushing's driveway, and by a large tree in his yard, however, this evidence was controverted by other witnesses and Mr. Rushing testified the hedge began four feet from the road and was only two feet high for a distance of 24 feet from the road, and that the tree limbs did not extend below the electric lines along the street.
The evidence was conflicting as to the working condition of the brakes on defendant's automobile.
The principle is well recognized and has been stated many times that 'In order to constitute manslaughter in the first degree, there must be either a positive intention to kill, or an act of violence from which, ordinarily, in the usual course of events, death or great bodily injury may be a consequence.' Harrington v. State, 83 Ala. 9, 3 So. 425-428.
Gurley v. State, 36 Ala.App. 606, 61 So.2d 137, 139.
Under the conflicting evidence in this case the court properly and without error refused the affirmative charge. Reynolds v. State, supra; Rainey v. State, 245 Ala. 458, 17 So.2d 687; Jones v. State, supra.
We are clear to the conclusion that the State's evidence in chief was sufficient to establish a prima facie case. Moreover, the court could not be held in error in overruling the defendant's motion to exclude...
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