Holmes v. State

• Decision Date: 24 March 1959
• Docket Number: 7 Div. 563
• Citation: 112 So.2d 511,40 Ala.App. 251
• Parties: Ted Leon HOLMES v. STATE.
• Court: Alabama Court of Appeals

Page 511

112 So.2d 511

40 Ala.App. 251

Ted Leon HOLMES v. STATE.

7 Div. 563.

Court of Appeals of Alabama.

March 24, 1959.

Rehearing Denied April 7, 1959.

Stringer & Montgomery, Talladega, for appellant.

MacDonald Gallion, Atty. Gen., and Jas. W. Webb, Asst. Atty. Gen., for the State.

CATES, Judge.

Holmes has appealed from a conviction of involuntary manslaughter carrying a twelve months' jail sentence.

The homicide charged was the killing of Doyle Wayne Wright and his two and a half year old daughter, Donna Faye, in a collision between automobiles driven by Wright and by Holmes.

The wreck occurred about nine o'clock on the night of November 8, 1957, at a point on the Talladega-Sylacauga road somewhat north from the Alpine turn off. Holmes was traveling south going from Talladega toward Sylacauga. Wright was headed north.

There were only two eye witnesses, Holmes and Mr. J. W. Moore, a friend of his, who had followed him in another car all the way from Talladega.

The fact that two deaths resulted from the same transaction, does not make the indictment duplicitous. See Nixon v. State, Ala., 105 So.2d 349, a case of Nixon's car simultaneously striking three children.

The State offered the testimony of Robert Elders who was caught with a flat tire on his car at a point 'something like a mile' from the point of collision. He saw Holmes' and Moore's cars pass going toward Sylacauga. He was able to observe them for only about an eighth of a mile looking from where his car was stopped toward the point of collision. This appears the result of Elder's being parked on the side of a hill.

As to what he could hear of the cars after they had gone by, Elders testified:

'Well, yeah, I could hear them a pretty good piece, but I couldn't say just how far I could hear them. Something like a quarter of a mile I reckon surely. I couldn't say I could hear them any further. I wasn't paying any attention to that.'

After the lapse of some fifteen minutes, Elders came upon the scene of the wreck.

The testimony went:

'Q. What is your opinion as to the speed of the red and black automobile?

'Mr. Stringer: Now, if your Honor please we renew our objection to that on the ground that it calls for irrelevant, immaterial, incompetent and illegal testimony and on the further ground the witness is not shown to be qualified to express an opinion, and on the further ground--express an opinion about the matter inquired about--and on the further ground that the speed of the automobile which the witness says he saw at the place where he saw it sheds no material evidence upon the speed of the automobile at the time the alleged collision took place, sheds no material evidence upon the matters involved in this case.

'The Court: I'll overrule.

'Mr. Stringer: We except.

'A. You wanted me to estimate the speed I thought he was making. I would say he was at least making 75 or 80 miles an hour.

'Q. That is your best judgment? A. Yes, sir.

'Mr. Stringer: We move to exclude that answer.

'The Court: That is your best judgment you said?

'A. Yes, sir.

'The Court: I'll overrule.

'Mr. Stringer: We except.'

On his cross-examination, Elders was asked:

'Q. Did you judge the speed by the sound it made when it passed? A. Yes, sir, from the sound when it come in sight until it left out of my hearing.'

And again we find:

'Q. How far did it travel before it got out of your sight? A. I couldn't say just exactly how far he traveled before he got out of my sight, something like----

'Q. (interrupting) Well, you were down there, weren't you? A. --something like the distance from here to the post office over there.

'Q. After that he went over a hill out of your sight? A. That's right.

'Q. You don't know what speed he made after he got out of your sight? A. Well, no.

'Q. And that was nearly a mile from the time--in other words, the distance from the place where he got out of your sight to the place where you saw these cars down there in a wrecked condition, that was nearly a mile wasn't it? A. Something nearly a mile.

'Q. And you don't know whether he slowed up or went faster when he went out of your sight, is that right? A. No, sir, I don't know.'

Evidence of speed at a remote point has been admitted 'when it relates to a place not so remote as that a fair inference may be indulged that substantially such speed was probably maintained to and at the time of the accident.' Townsend v. Adair, 223 Ala. 150, 134 So. 637, 639. (Italics added.) The application of this somewhat iffy formula is committed to the sound discretion of the trial judge. Whittaker v. Walker, 223 Ala. 167, 135 So. 185.

The distances in the Alabama cases run: Utility Trailer Works v. Phillips, 249 Ala. 61, 20 So.2d 289 (4/10 mile, variation in grade; not error to exclude); Hodges v. Wells, 226 Ala. 558, 147 So. 672 (several miles; error to admit; reversed on other grounds); Bains Motor Co. v. Le Croy, 209 Ala. 345, 96 So. 483 (several hundred feet; not error to admit; reversed on another ground); Davies v. Barnes, 201 Ala. 120, 77 So. 612 (1 1/2 blocks; not error to admit; 4-3 court).

In Lessman v. West, 20 Ala.App. 289, 101 So. 515, the car remained in view from its first being seen until impact.

A prosecution witness (in Bradford v. State, 166 Miss. 296, 146 So. 635) was on the porch of his home about a mile from the collision when he saw appellant drive past going from fifty to fifty-five miles an hour. The cutout never slowed down until the collision. The court held that based upon this continuous perception the testimony had probative value.

In a criminal case, Graham v. State, 25 Ala.App. 44, 140 So. 621, this court, per Sanford, J., held that error, if any, in admitting evidence (among other things) of speed at a point one-fourth mile distant was cured by instructing the jury not to consider 'the testimony * * * about meeting a car.'

In the opinion in what seems to be the first case involving a motor car, Davies v. Barnes, supra, Judge Somerville was careful to point out that speed at one point does not create even a rebuttable (or disputable) presumption of continuing status. However, where, very shortly after the distant observation (1 1/2 blocks), the vehicle hit a flagman (the plaintiff), the opinion states the speed then was 'clearly a fact for the jury to consider, as affording an inference of fact with respect to its probable speed and control' at the time of striking the flagman. Thus, it would seem the court has treated the testimony as circumstantial evidence.

On rehearing (with three very able justices dissenting), after referring to Louisville & N. R. Co. v. Woods, 105 Ala. 561, 17 So. 41, Mr. Justice Somerville went on:

'So far as the prima facie relevancy of the evidence in the instant case is concerned, we think the question is foreclosed by the decision in the Woods case.

'If subsequent developments in the course of the trial nullified this prima facie relevancy, which we need not determine, a motion should have been made for its exclusion, failing which the trial judge cannot be put in error for its original rightful admission.

'We, of course, do not overlook the difference between a railroad train running on rails, and probably observing the obligations of a schedule time, and an automobile running on the highway at the will of its driver. There is a difference, but the difference is in the strength of the inference and its probative value, and not in the principle of relevancy and admissibility.

'With respect to the distance at which previous speed is admissible for this purpose, there must indeed be some limit; but, as in all similar cases, this will depend upon the facts of each case, and must be left to the sound discretion of the trial court.' [201 Ala. 120, 77 So. 613] (Italics added.)

If the expression 'prima facie relevancy' is but an outcropping of the scintilla rule, then, of course, the principle would not operate in criminal trials. Blue v. State, 246 Ala. 73, 19 So.2d 11. On the other hand, the further express limitation with respect to the distance away from the collision at which speed loses relevancy clearly shows that the trial judge is not to be cloaked with an irrevisable discretion.

In Whittaker v. Walker, supra, Sayre, J., who had dissented in Davies v. Barnes, alludes to the road surface differences in former decisions and seemingly detracts from the analogy between an automobile and a locomotive. By and large, the adoption of the foot throttle and four wheel brakes has made the acceleration and deceleration of a motor car much more responsive to the will of the operator.

From 5A, Am.Jur., Automobiles, etc., § 954, we quote in part:

'* * * Certain types of conduct can be changed quickly, so that evidence of such conduct at one point can have little independent value as proof of the same conduct at a different time and place. * * * If a driver is speeding at a certain moment he can quickly reduce his speed; and if his car is straddling the center line of the highway he can quickly get onto the right side; and the further from the scene the conduct occurred, the less probable it is that the conduct continued, and the more likely the court is to exclude the testimony on the ground of remoteness. * * *'

If we were to suggest a yardstick for admissibility, it would involve primarily what mechanical and controlling forces were available to have avoided the fault for the collision. A reasonable man (while he may assume oncoming traffic will not veer across the center of the road) should (subject to such assumptions that others will drive properly) at all times be able to control his car within the available clear distance.

Thus, Holmes, when going eighty miles an hour, needed only to lower his speed to fifty miles per hour to be within the lawful nighttime speed limit for an open road. According to Elders, there was an unobserved distance of some 4,600 feet which was left to Holmes to slow down to the speed limit. There was no...