Gills v. State

• Citation: 35 Ala.App. 119,45 So.2d 44
• Decision Date: 10 January 1950
• Docket Number: 6 Div. 664
• Parties: GILLS v. STATE.
• Court: Alabama Court of Appeals

Page 44

45 So.2d 44

35 Ala.App. 119

GILLS v. STATE.

6 Div. 664.

Court of Appeals of Alabama.

Jan. 10, 1950.

Rehearing Denied Jan. 31, 1950.

Gibson & Hewitt, of Birmingham, for appellant.

A. A. Carmichael, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., for the State.

The following charge was refused to defendant: 'A. The Court charges the jury, that all the State's evidence in this case is circumstantial and the defendant's innocence should be presumed by the jury, until his guilt is established by the evidence, in all the material aspects of the case, beyond a reasonable doubt and to a moral certainty.'

CARR, Judge.

This appeal is here from a judgment of conviction in the lower court for the offense of manslaughter in the first degree.

The following facts appear in the record without substantial dispute.

The decedent's death was caused by an impact between a motorscooter, on which he was traveling, and an automobile. The collision occurred at night, on a straight portion of a paved highway, near a place where another public road intersected the highway on which the colliding vehicles were traveling. The location was between Bessemer and Birmingham in a section where there were a number of dwelling houses.

The officers arrived soon after the collision. They found the appellant's car completely off the shoulder of the highway to the left in the direction it was traveling, headed against a tree. The pictures of the automobile disclose considerable damage to the immediate front of appellant's car. There were skid marks and indentations on the surface of the pavement. They extended back from the car to a distance of 204 feet. The mangled, dead body of the deceased and damaged parts of his motor-scooter were found beneath the front portion of the defendant's automobile. The appellant was out of his car and standing near by.

The officers testified that they found the defendant in an intoxicated condition. The accused denied this. However, he stated that he had consumed two bottles of beer several hours prior to the collision.

According to the testimony of one of the investigating officers, on the journey from the scene to the jail, the appellant stated that 'he was passing a car, they were both going the same way--the car that he passed; and overtaken a scooter,--a motor-scooter.'

The investigator out of the solicitor's office took a statement from the accused. This was reduced to writing and signed by the latter. The statement in pertinent parts is:

'Last night I drove to B'ham, and got Willie D. Caster and her two children and brought them to Leroy Moorer's house at Travelick. We left the children at Leroy's house, and Leroy and Willie D. and I started to the 'Blue Frog' at Brown's Station. Willie D. and Leroy drank some home brew at Leroy's house but I did not drink any.

'In my best judgment it was about 9:30 o'clock last night when the three of us left Leroy Moorer's house and I was driving and Willie D. was sitting in the middle of the front seat and Leroy was sitting on the right of the front seat.

'We stopped one time before we got to the paved road and Leroy and Willie D. drank a can of beer each, but I did not drink anything. I drank one bottle of beer yesterday afternoon after I got off from work and that is all I drank at any time last night or yesterday.

'I drove to the paved big highway between Powderly, Ala., and Bessemer, Ala., and drove down the highway toward Bessemer. My car is a Model 1937 4 door Buick sedan.

'When I got to Hillman on the highway between Powderly and Bessemer I was meeting a car with bright lights and I was driving about 40 miles per hour, and just as this car took the lights off me and was passing me I hit a white man on a motor bike. I was driving about 40 miles per hour and this man was on the right side of the road in front of me and going in the same direction that I was, and I was on the right side of the road. I did not see this man on the motor bike until I hit him because the car that I was meeting had just taken its lights off of me.

'I put on my brakes and pulled to the left to try to pull away from the man that I had hit. I went across the left side of the road and went about 100 feet after I hit the man before I stopped against a tree and in some hedge in front of a house.

'I did not hear my brakes or tires making any noise before I stopped.

'The first noise or crash I heard last night when I had the accident was when I hit this man on the motor bike.

'When I stopped my car the three of us got out of my car and walked back up the big highway to see if we could see the man and the motor bike, and I did not see them, and we walked back to my car, and in the yard and the motor bike was partly under my car near the steering wheel and left bumper.

'When the accident happened Leroy Moorer was about half drunk and Willie D. Caster was under influence of intoxicants but not quite at drunk as Leroy.'

In his testimony at the trial below the appellant stated that he gave the rate of his speed at 25 or 30 miles per hour and not 40 miles as it appears in the written statement.

He testified, also, that he told the officer 'as the car was passing, we were passing each other, that I had hit something but I didn't know what it was.'

The appellant's contention that he was meeting another car was supported by the testimony of other witnesses. From this evidence the jury could have reasonably inferred that the unidentified automobile first struck the deceased.

The evidence in its entirety does not present a conclusive factual situation in this aspect. In its most favorable light for the accused the impacts of the two cars against the motorscooter were practically simultaneous and occurred at the time the two automobiles were in the act of passing each other.

In fairness to a full review, we have attempted to set out the tendencies of the evidence in some detail.

Appellant's attorney in brief and oral argument cogently urges that the accused was due the general affirmative charge. This insistence is directed primarily to the position that a jury question was not presented on the charge of manslaughter in the first degree.

In approaching this review we are required to take the evidence favorable to the prosecution as true and accord to the State all legitimate inferences therefrom. Jones v. State, 33 Ala.App. 451, 34 So.2d 483.

'Manslaughter, by voluntarily depriving a human being of life, is manslaughter in the first degree; and manslaughter committed under any other circumstances is manslaughter in the second degree.' Title 14, Sec. 320, Code 1940.

'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.

'If the defendant in this case so recklessly drove an automobile along the public highway and in such manner as to endanger human life, and death resulted, the act would be manslaughter in the first degree whether the positive intention to kill was proven or not.' Reynolds v. State, 24 Ala.App. 249, 134 So. 815, 816.

Appellant's counsel cites Rainey v. State, 31 Ala.App. 271, 17 So.2d 683. This court held in effect that wanton injury must be predicated upon actual knowledge of another's peril. On certiorari, 245 Ala. 458, 17 So.2d 687, 689, Justice Foster, writing for the Supreme Court, made this correction: 'We note that in the opinion of the Court of Appeals reference is made to the fact that in wantonness the accused must have actual knowledge that another occupies a position of peril. True, it is sometimes so stated as in the cases they cite, where other aspects of wantonness were not involved. Copeland v. Central of Georgia Ry. Co., 213 Ala. 620, 105 So. 809, and in Pratt v. State, 27 Ala.App. 301, 171 So. 393. But it is also as well settled that it is culpable wantonness when the accused has knowledge that some person (any person) is likely to be in a position of danger and with conscious disregard of such known danger, he recklessly proceeds on a dangerous course which causes the disaster, though he may not know whether any person is actually in danger. Godfrey v. Vinson, 215 Ala. 166(6), 110 So. 13; 15 Alabama Digest, Negligence, k11, page 301.'

It is to be noted, also that the Supreme Court held that the defendant was not due the general affirmative charge.

We are clear to the conclusion that the evidence in the instant case presented a jury question as to the offense of manslaughter in the first degree. The affirmative charge was, therefore, properly denied. Jones v. State, supra; Reynolds v. State, supra; Hammell v. State, 21 Ala.App. 633, 111 So. 191; Graham v. State, 27 Ala.App. 505, 176 So. 382; Rainey v. State, 245 Ala. 458, 17 So.2d 687; Williams v. State, 17 Ala.App. 285, 84 So. 424.

The evidence which we have hereinabove delineated will serve to illustrate our view that we are not authorized under the familiar rule to declare that the trial judge was in error in denying the motion for a new trial. Jones v. State, supra; Booth v. State, 247 Ala. 600, 25 So.2d 427; Freeman v. State, 30 Ala.App. 99, 1 So.2d 917.

The deceased was killed as he was going from his home to the place of his employment. His customary route of travel was proved by his son. This related to an undisputed fact. The accused was in no manner injured by this proof. Rules of Practice in Supreme Court, Rule 45, Code 1940, Tit. 7 Appendix.

As we have stated above, the officers came to the scene soon after the collision and before the automobile was moved or the dead body of the deceased was released from beneath it. They were allowed to describe the signs and marks which they observed on the pavement, with particular reference to the skids and scratches on the surface of the highway. The introduction of this evidence did not...