Hanby v. State

Decision Date09 April 1957
Docket Number1 Div. 712
PartiesRobert C. HANBY v. STATE.
CourtAlabama Court of Appeals

Robt. E. Hodnett, Jr., Tonsmeire & Hodnett, Mobile, for appellant.

John Patterson, Atty. Gen., and Edmon L. Rinehart, Asst. Atty. Gen., for the State.

The following charge was refused to defendant:

'37. The defendant enters into this trial with a presumption of innocence, and this is a fact in the case which must be considered with the evidence and should not be disregarded.'

CATES, Judge.

Robert C. Hanby was tried by a jury in the Mobile Circuit Court on a one count indictment for voluntary manslaughter for the killing of Robert Manning with an automobile. The jury found him guilty of first degree manslaughter and fixed his punishment 'at not more than one year.'

The court adjudged the defendant guilty as charged and sentenced him to the penitentiary for one year. The State confesses error in that imprisonment in the penitentiary is incorrect, Code 1940, Title 15, § 325, even though apparently called for under Title 14, § 322. This error, of course, could be cured by remandment for proper sentence.

Reversible error is shown in that the court should not have received the verdict of the jury because it prescribed an indeterminate sentence which is not a legal punishment for manslaughter.

'* * * It has never been supposed that the jury might in such cases leave the amount of the punishment to be fixed by the court. This court held, in Bankhead v. State, 124 Ala. 14, 26 So. 979, that in all cases of unlawful homicide the punishment must be fixed by the jury trying the case, and that the court could not relieve the jury of that responsibility.' Bates v. State, 170 Ala. 26, 54 So. 432.

We do not consider as pertinent the case of Lewis v. State, 51 Ala. 1, where it was not error for the jury to 'recommend' a sentence of twenty years instead of fixing the sentence. Where a fine could be imposed only by the jury, a judgment for a fine without a supporting verdict was said to be 'without warrant of law,' Nelson v. State, 46 Ala. 186; see also Nemo v. Commonwealth, 2 Gratt., Va., 558. In Georgia, under an indeterminate sentence law, it has been held that the failure of the jury to prescribe both the upper and lower limits of the term brings about reversible error. Camp v. State, 187 Ga. 76, 200 S.E. 126.

The need for a definite prescription of time is so that the warden of the penitentiary or the jailer will know how long he may lawfully keep the convict in custody. This we do not have here.

The judgment must be reversed and the cause remanded for a new trial.

Reversed and remanded.

After Remandment

About 5:00 p. m., March 15, 1955, Hanby was driving a 1952 Oldsmobile westwardly on Wasson Street in Mobile. Robert Manning was driving a motor scooter northwardly on Turner Road. The two vehicles seemingly entered the intersection of the two thoroughfares at about the same moment and collided. Manning died later from the injuries from the wreck.

Kenneth Patrick, driver of a dry cleaning truck, testified for the State that just before the collision he was calling on his route along Wasson Street some five hundred feet from the junction of Wasson and Turner:

'This car came up the road at approximately sixty-five miles an hour and when he got to where I was at he went completely off the road up in the edge of the school yard and almost hit a telephone post and back on to the road, off to the other side and ran two cars off of the road, and I ran out into the street * * *

* * *

* * *

'I ran out into the street and saw the fellow go across the intersection and it was awful dusty, I knew he had had a wreck.

* * *

* * *

'I heard a collision.'

Mr. Alvin Tew, who lived on Wasson Street near the intersection, testified (in part):

'I was sitting out in the yard and I heard some tires squealing, me and my wife, and I looked up the street and I seen an automobile coming, and two of his wheels were off the highway; I guess he run about two hundred feet and he got back on the highway, I got up, I was sitting down and I got up and looked, and the next thing I knew I seen a motor bike passing by and this car hit it about that time.

'Q. Hit the motor bike, sir? A. Yes sir.

'Q. What happened after it struck the motor bike? A. Well, it looked like it throwed that boy four or five feet above the top of the car.

'Q. Over the car itself? A. No, right up front of it.

'Q. Right up in front of the car? A. Yes sir.

* * *

* * *

'* * * now, you say you saw this car coming down the road, what street, what road was he coming down, sir? A. Wasson Street.

'Q. Wasson Street; how far did you have an opportunity to observe it? A. I seen it all the way.

'Q. In your opinion, what was the speed of that automobile just prior to the impact with the boy?

'Defendant objects to that, he said I seen it all the way, and I submit to the Court that that is not a statement of anything definite on which he can predicate an opinion----

'Q. We will qualify him; how far down Wasson Street did you observe the car before the point of impact with the boy? A. From where I was standing?

'Q. Yes? A. Well, about five hundred feet.

'Q. About five hundred feet? A. Yes sir.

'Q. In your opinion then what was the speed of the automobile at the point of collision?

'Defendant makes the same objection. The court overruled the objection, and Defendant reserved an exception to the ruling of the Court.

'Q. All right, answer the question? A. I would say approximately, about sixty miles an hour.

'Q. About sixty miles an hour.'

Mr. C. T. Bradley, Highway patrolman, testified:

'When we arrived at the scene of the accident the first thing we come upon was Mr. Hanby's car laying bottomside up and he partly in it on the railroad, and immediately we went on down to where the kid was laying in the road and saw that Doctor Green was present at the time and that he was taking care of the injured there, and then I went back to the car and helped them load Mr. Hanby in the ambulance and they took him on to the hospital.

* * *

* * *

'Q. Did you notice any odor of alcohol? A. Yes sir, I did.

'Q. Where was that, was that at the car? A. Yes sir, that was while we were loading him in the ambulance down there close quarters with him.

'Q. How strong was it, Officer Bradley? A. Very strong.

'Q. Very strong? A. Yes sir.

'Q. Did you later on or at any other time notice the odor of alcohol again? A. Yes sir, we again, approximately about three hours later there was still the odor of alcohol on his breath.

'Q. Where was that? A. That was at the Prichard Police Station.

'Q. At the Prichard Police Station? A. Yes.'

Relating Hanby's statement when being taken from the police station to the county jail, Bradley went on:

'He said that the kid come out of nowhere, the best that he could figure out, that he was right on him before he saw him and that he did everything he could to avoid hitting him.

'Q. Yes sir; did he say anything about alcohol or any drinking he had done, sir? A. Yes sir, I asked him had he been drinking and he said yes he had.

'Q. Did he say how much he had had? A. He said he had drank almost a pint, a half of pint of one and part of a half pint of another.

'Q. A half of pint of one and part of a half of pint of another? A. Yes sir.'

The testimony for the defendant was to the effect that he had not had a drink in over three years; he had taken some medicine that day. Several witnesses who saw him and were near enough to smell his breath during the afternoon, stated positively they had detected no odor of alcohol. There was other and further evidence that he was driving at a reasonable speed at the time of the collision, and that Manning was himself to blame.

This conflict presented a jury question.

The defendant excepted twice to the court's oral charge. The first exception reads:

'I would like to respectfully except to the Court's charge in this regard, that the Court charged the jury on manslaughter in the first and second degrees, but did not charge the jury with respect to reckless driving.

'Further, I would like to request the permission to have the Reporter to read the words specifically of the Court in the first part of the Court's charge pertaining to manslaughter in the first degree, if he drives an automobile in a reckless or wanton manner and death results, it is manslaughter in the first degree. May I have the Court Reporter to read that part in order that I may put my exception in shape?

'By The Court: I think that handles it. The Court's charge, I will stand on that.'

The second exception brought an extension of the oral charge to which no further exception was taken. Accordingly, under the principle given in McFarling v. State, 35 Ala.App. 191, 45 So.2d 322, and in view of the defense counsel's satisfaction as to the extended oral charge (which we infer from the absence of any further exception taken to the oral charge as extended), the first exception is the only one reviewable on appeal.

The trial judge had instructed on first degree manslaughter:

'In order to constitute manslaughter in the first degree there must be therein a positive intention to kill or an act of violence, of wanton or recklessness, from which ordinarily in the usual course of events death or great bodily harm may be a consequence. Manslaughter, therefore, in the first degree is when a man drives an automobile, as the charge is in this case, in a reckless manner, in a wanton manner, without regard to the safety or life of others, and as a result, proximate result of that death ensues, it would constitute manslaughter in the first degree. Now, if this defendant drove 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 caused the death of another, the act would be...

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8 cases
  • Commander v. State
    • United States
    • Alabama Court of Criminal Appeals
    • July 25, 1978
    ...Throughout this opinion we have attempted to explain the elements of second degree murder. The opinion in Hanby v. State, 39 Ala.App. 392 at 397, 101 So.2d 553 (1957), reversed on other grounds, 267 Ala. 69, 101 So.2d 562 (1958), approves an oral charge as adequately defining manslaughter i......
  • Anderson v. State
    • United States
    • Alabama Court of Appeals
    • November 10, 1959
    ...that Anderson was driving sixty to seventy miles per hour. Howard's contributory negligence would not absolve Anderson. Hanby v. State, 39 Ala.App. 392, 101 So.2d 553. Therefore, we consider that, as a matter of law, the trial judge properly overruled Anderson's motion (made when the State ......
  • Frazier v. State
    • United States
    • Alabama Court of Appeals
    • October 7, 1958
    ...analogous to the rule that prevents contributory negligence from acting to absolve a defendant from criminal responsibility, Hanby v. State, Ala.App., 101 So.2d 553. In a civil case as to the distribution of a joint bank account, the Supreme Court of Minnesota held that, as against demurrer......
  • Tate v. State
    • United States
    • Alabama Court of Criminal Appeals
    • August 31, 1976
    ...fact that a written instruction is copied from an opinion of an appellate court does not assure its acceptability. Hanby v. State, 39 Ala.App. 392, 101 So.2d 553 (1957). Each charge has been considered in view of the evidence. We find no ground for The appellant requested the following char......
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