Hanby v. State
Decision Date | 09 April 1957 |
Docket Number | 1 Div. 712 |
Parties | Robert C. HANBY v. STATE. |
Court | Alabama 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:
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.
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.
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.
* * *
* * *
'
'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----
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.
* * *
* * *
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.
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.
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:
...
To continue reading
Request your trial-
Commander v. State
...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
...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
...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
...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......