Head v. State

• Decision Date: 10 January 1950
• Docket Number: 6 Div. 975
• Citation: Head v. State, 35 Ala.App. 71, 44 So.2d 441 (Ala. App. 1950)
• Parties: HEAD v. STATE.
• Court: Alabama Court of Appeals

Page 441

44 So.2d 441

35 Ala.App. 71

HEAD v. STATE.

6 Div. 975.

Court of Appeals of Alabama.

Jan. 10, 1950.

Rehearing Denied Jan. 31, 1950.

Scruggs & Scruggs, of Guntersville, for appellant.

A. A. Carmichael, Atty. Gen., and Neil Metcalf, Asst. Atty. Gen., for the State.

The following charges were refused to defendant:

'1. Gentlemen of the Jury, unless you believe from all the evidence beyond all reasonable doubt that defendant at the time intended to kill the deceased you should acquit him of the offense of manslaughter in the first degree.

'4. The court charges the jury that if the State's witnesses have exhibited prejudice or anger against the defendant, and satisfied you that they have not testified truly, and are not worthy of belief, and you think their testimony should be disregarded, you may disregard it altogether.

'7. The court charges the jury that defendant cannot be convicted in this case unless each and every juror is not only reasonably satisfied from the evidence of defendant's guilt, but if satisfied from the evidence, and the evidence alone, beyond all reasonable doubt, and to a mora certainty of his guilt.

'8. The Court charges the jury that if they are not satisfied beyond all reasonable doubt, to a moral certainty, and to the exclusion of every other reasonable hypothesis but that of the guilt of the defendant, then they should find him not guilty; and it is not necessary, to raise a reasonable doubt, that the jury should find from all the evidence a probability of defendant's innocence, but such a doubt may arise, even when there is no probability of his innocence in the testimony, and, if the jury have not an abiding conviction to a moral certainty of his guilt, it is the duty of the jury to acquit him.

'9. The Court charges the jury that the burden is upon the State, and it is the duty of the State to show beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis every circumstance necessary to show that the defendant is guilty; and, unless the State has done that in this case, it is your duty, gentlemen of the jury, to render a verdict of not guilty.'

HARWOOD, Judge.

The indictment against this appellant contained three counts, each charging manslaughter in the first degree.

At the conclusion of the State's case the court granted appellant's motion that he be discharged as to counts one and two of the indictment, and denied his motion to be discharged as to count three.

Omitting the formal parts count three charged that the appellant 'did unlawfully and intentionally, but without malice, kill Medford Longshore, by running against a car in which Medford Longshore was riding, with a Motor Truck,' etc.

Count three of the indictment sufficiently apprised appellant of the offense with which he was charged, and no error resulted from the court's action in overruling appellant's demurrer to the indictment on the ground that same was ambiguous, unintelligible, or failed to aver facts sufficient to show a violation of law by appellant.

The indictment bears the signature of 'B. M. Bains, prosecutor.' This fact is set forth as one of the grounds of appellant's demurrer to the indictment, and counsel argues the demurrer should have been sustained on this ground. There is no merit in this contention. The signature of the Solicitor to an indictment is permissible and proper, but is not an essential requisite, and may be treated as surplusage. The only required authentication of an indictment is the signature of the foreman of the grand jury finding it, and returning it in open court. See 12 Alabama Digest, Indictment and Information, k33(1) for innumerable cases enunciating such principle.

The deceased was killed as a result of a collision between an automobile in which he was riding, and a truck driven by the appellant.

The collision was seen by two witnesses for the State, Lestor Tipton and Bob Roberson, who were near the highway at the time.

The tendency of the evidence presented by these two witnesses was to the effect that the car in which the deceased was riding, proceeding at a speed of 20 to 30 miles per hour, and to the right of the center line in relation to the direction it was proceeding, in fact with its right wheels off the paved portion of the road, was struck by appellant's truck, which was proceeding in the opposite direction at a speed of from 75 to 80 miles per hour.

Mr. Tipton testified that he saw appellant when he was brought back to the scene of the collision, and in his judgment he was drinking.

Ben Allen, a member of the State Highway Patrol, as a witness for the State, testified that upon being notified of a collision he went to the scene. Upon his arrival there: 'Three men were lying there in the road. One of them told me something. I went down the road. I was there in an automobile. I stopped at his truck. I got a man out. He was drunk and I brought him to jail.' This man told Mr. Allen that his name was Fred Head.

Lake Burdick, a witness for the State, testified that he saw appellant when he was brought to jail by Mr. Allen, and that appellant was at this time very drunk.

On cross-examination this witness, in reply to the question: 'He didn't know what he was doing, did he?' replied 'I don't think he knowed too much about what he was doing.'

In his own behalf the appellant testified that on the day of this collision he had had a bottle of beer on his way to Montgomery and had drunk two bottles on the return trip, at a place on the Cahaba river near the county line beyond Birmingham.

At the time of the collision, in Blount County, he was diriving at a speed of around 40 miles per hour. The car in which deceased was riding approached him 'plenty fast,' and ran into his truck. The collision 'knocked me crazy and scared me to death too.' The next thing appellant 'realized' he had stopped about a mile away and was throwing sand on a burning rear tire of his truck. His truck burned up.

Other witnesses for appellant testified to the effect that only the left rear side of appellant's truck bore marks of a collision.

A number of objections to certain questions propounded by the Solicitor were interposed by appellant's counsel in the trial below, which were overruled, by the court, and several motions to exclude certain answers were likewise made.

In all but the instances to be commented on below either only a general objection was interposed, with no grounds assigned in support thereof, or only general grounds were assigned, while no grounds, or only general grounds were assigned in support of the motion to exclude.

If only a general objection is interposed, or only general grounds are assigned in support of an objection, no error results in overruling such objection unless the evidence sought is illegal for any purpose and cannot be made legal by other evidence, or by otherwise framing the question. Louisville and Nashville R. Co. v. Scott, 232 Ala. 284, 167 So. 572. Unless the objection particularizes the defect in the question neither the interrogator, nor the court, is apprised of a defect that may be latent therein, and no opportunity is afforded to correct such defect by reframing the question, or supplying additional evidence. Walker v. Jones, 33 Ala.App. 348, 34 So.2d 608. The evidence sought under the questions above mentioned was not obnoxious to all rules of evidence, and not illegal under any and all circumstances.

Likewise, a motion to exclude an answer from evidence is overruled without error where no grounds, or only general grounds are assigned. Rutledge v. Rowland, 161 Ala. 114, 49 So. 461; Slaughter v. Green, 205 Ala. 250, 87 So. 358.

During the direct examination of Junior Longshore, brother of the deceased, a witness for the State, he was asked 'What kind of injury did he (deceased) receive?' Appellant's objection, on the grounds that this witness was not an expert, was overruled, and exception reserved. The witness' answer 'Car wreck' was innocuous, and in no way could have materially affected the substantial rights of the accused. Furthermore, the fact that the deceased was injured in the collision was undisputed.

During the direct examination of Lester Tipton, a witness for the State, the record discloses the following:

'Q. The one that just left the stand. Did you see the gentlemen sitting over there by Mr. Scruggs there? A. I saw him as he was going on down the road. He was going so fast I couldn't hardly see him, but I did see him.

'Mr. Scruggs: Wait a minute, Mr. Rains. We move to exclude that statement. It is not responsive.

'The Court: Overrule.

'Mr. Scruggs: We except and move to exclude all of it except 'Yes, sir,' the words 'Yes, sir,' because that is not responsive.

'The Court: Overrule.

'Mr. Scruggs: Except.'

Clearly that part of witness' answer 'I saw him as he was going down the road. * * * I did see him' is responsive to the question.

A motion to strike out the whole answer of a witness, where part of the answer is good is properly denied. See 18 Alabama Digest, Trial, k96 for innumerable cases enunciating above principle.

Several exceptions were reserved to the oral charge of the court. Only two of these exceptions are argued in counsel's brief. In our opinion, the remaining exceptions are without merit, and probably were so considered by counsel.

In this oral charge the court read a portion of Sections 2 and 5 of Title 36, Code of Alabama 1940, with the following introductory statement: 'Now, gentlemen, in this case we have certain rules of the road. The fact that I read them to you does not indicate and are not to be taken by you that the Court feels that they have or have not been violated. That is for the jury to decide, but there is testimony both ways and I am reading them to you so that if you do feel it has been violated, you will know what the law is, but the fact I read them does not indicate the Court feels either way about the matter.' (Italics ours).

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