Gurley v. State, 6 Div. 432

• Decision Date: 07 October 1952
• Docket Number: 6 Div. 432
• Citation: 36 Ala.App. 606,61 So.2d 137
• Parties: GURLEY v. STATE.
• Court: Alabama Court of Appeals

Page 137

61 So.2d 137

36 Ala.App. 606

GURLEY v. STATE.

6 Div. 432.

Court of Appeals of Alabama.

Oct. 7, 1952.

Rehearing Denied Oct. 28, 1952.

E. D. McDuffie, Tuscaloosa, and Young & Young, Vernon, for appellant.

Si Garrett, Atty. Gen., and J. W. Arbuthnot, Asst. Atty. Gen., and Marvin Cherner, Birmingham, of counsel, for the State.

PRICE, Judge.

Appellant was convicted of manslaughter in the first degree and sentenced to serve seven years in the State penitentiary.

It was contended by the State that appellant's automobile struck Elizabeth Atkins, alias Aunt Bet Moore, causing her death. The testimony for the State was to the effect that defendant was under the influence of intoxicating beverages, and at the time of the impact was driving at the rate of 45 or 50 miles per hour along the Vernon-Columbus highway in the City limits of Vernon, Alabama. One witness testified that just before the accident defendant rounded a curve driving 75 miles an hour, with tires screaming, and the automobile swerved at least three times, the last swerve occurring about 20 feet from the victim. One witness saw the car strike deceased and others saw her 'rolling off the front fender.'

Deceased was about two feet off the black top when last seen before she was struck. After the impact, defendant slowed up, opened the door and looked back, then speeded up and left the scene. He was arrested as he drove through Millport.

Annie Lee Carroll, who was on the front seat with defendant, testified when she saw the victim she 'came up on the side of the fender and landed on the side of the road.' Defendant remarked he had hit something and witness told him it was a lady or a child on a bicycle. Defendant told the occupants of the car if they were stopped they were to say they knew nothing about the accident. This witness testified the automobile was never off the paved portion of the street.

Defendant testified he and his uncle and two girls had been to the Mississippi State line and bought some beer; that he drank some but didn't remember how much. He and three others had consumed a small amount of whiskey that morning. Coming through Vernon he was not drunk. His windshield was fogged up and he did not see the automobile hit the victim, nor did he hear anything strike the car. He heard the Carroll girl say the automobile had hit some one, and looked back but saw nothing. He testified he did not know he had hit a woman until the policeman stopped him at Millport. He also denied telling the others they were not to know anything about the accident if they were stopped.

Appellant's counsel insists that the evidence for the State failed to establish the fact that the injuries inflicted by defendant caused the death of deceased.

Of course, it was incumbent upon the State to show a causal connection between the injuries inflicted by defendant and the death of deceased, and such fact must be proven beyond a reasonable doubt, but it may be established by circumstances as well as by direct evidence. Gary v. State, 18 Ala.App. 367, 92 So. 533; Lawman v. State, 18 Ala.App. 569, 93 So. 69; Curry v. State, 23 Ala.App. 182, 122 So. 298; Walden v. State, 29 Ala.App. 462, 198 So. 261, certiorari denied 240 Ala. 193, 198 So. 264.

The evidence is without dispute that the fender of accused's automobile struck deceased's head; she was thrown twelve to fifteen feet by the impact. When picked up she was unconscious and remained unconscious until her death in a hospital five days later. Under the evidence, the question as to whether deceased died as a result of the injuries inflicted by defendant was for the jury.

If there is any proof, whether circumstantial or direct, to establish the corpus delicti, the sufficiency of such proof is for the jury and not for the court. Driver v. State, 18 Ala.App. 261, 89 So. 897; Moss v. State, 32 Ala.App. 250, 25 So.2d 700, certiorari denied 247 Ala. 595, 25 So.2d 703.

There was no error in the refusal of the affirmative charge, nor in overruling appellant's motion for a new trial on the ground the corpus delicti was not proven.

'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 one drives an automobile in such a manner as to evidence a wanton and reckless disregard of human life at the time and place and under the circumstances, and such driving proximately causes the death of another, the act would be manslaughter in the first degree whether the positive intention to kill is proven or not. Reynolds v. State, 24 Ala.App. 249, 134 So. 815, 816; Graham v. State, 27 Ala.App. 505, 176 So. 382; Jones v. State, 33 Ala.App. 451, 34 So.2d 483.

The evidence in this case was ample to sustain the judgment of conviction and no error resulted in the court's action in denying the motion for a new trial on the ground that the verdict was contrary to the great weight of the evidence.

During the Solicitor's argument to the jury, the following occurred:

'Mr. McDuffie: We object to the statement by Mr. Strawbridge that if an object is set in motion and death results or is a consequence of that act, then it constitutes manslaughter in the first degree.

'By the Court: Overrule. I'll charge them as to the law. Mr. Strawbridge left out the word 'probable.'

'Mr. McDuffie: We except, Your Honor, that is not the law.'

This action of the court did not constitute reversible error. The statement that the Solicitor's argument was erroneous and the court would instruct the jury as to the law, and the court's comprehensive charge as to the law of manslaughter in the first degree, eradicated any injurious effect of the Solicitor's statement. Davis v. State, 16 Ala.App. 149, 75 So. 825, certiorari denied 200 Ala. 577, 76 So. 935.

Defense counsel insists the jury was confused and misled as to the law of the case by the court's oral charge to the jury. No exception having been reserved to the charge on the trial, nothing is here presented for review. Morgan v. State, 20 Ala.App. 467, 103 So. 76; Middleton v. State, 22 Ala.App. 146, 113 So....