Johnson v. State

• Court: Alabama Court of Appeals
• Writing for the Court: HARWOOD; HARWOOD
• Citation: Johnson v. State, 34 Ala.App. 623, 43 So.2d 424 (Ala. App. 1949)
• Decision Date: 19 July 1949
• Docket Number: 3 Div. 902
• Parties: JOHNSON v. STATE.

Page 424

43 So.2d 424

34 Ala.App. 623

JOHNSON v. STATE.

3 Div. 902.

Court of Appeals of Alabama.

July 19, 1949.

Rehearing Denied Oct. 5, 1949.

Robt. H. Jones and F. M. Smith, Evergreen, for appellant.

A. A. Carmichael, Atty. Gen., and M. Roland Nachman, Jr., Asst. Atty. Gen., for the State.

HARWOOD, Judge.

This appellant was indicted for manslaughter in the first degree in that he 'unlawfully and intentionally, but without malice, killed Ustine LeCroy and Ellen Pearl Riggs, by driving a motor vehicle over, on or against them, etc.'

His jury trial resulted in a verdict of guilty of the offense charged, and his punishment was fixed at imprisonment in the penitentiary for a term of eight years.

The evidence introduced by the State was directed toward showing that on 28 February 1948, around 6:30 P.M., the two young girls above mentioned were walking along the curb or gutter of Cleveland Avenue, in the Town of Castleberry.

Appellant's car was travelling in the same direction as the two girls. Two other automobiles, apparently one behind the other, were approaching in the opposite direction. The front car thus approaching had only its parking lights turned on.

The appellant's automobile was travelling at a rate of speed described by one witness to be 'every bit of 45 or 50 miles per hour.'

According to the driver of one of the two approaching automobiles appellant's automobile was being driven in such a manner that he, the other driver, brought his automobile to a stop to see what was going to happen.

Appellant's automobile 'whipped over,' struck the young girls, and the curb near which they were walking. One of the girls was knocked 31 feet by the impact, and the other 61 feet.

Appellant's car slackened its pace, but continued on down the street. Appellant returned to the scene some 3 to 5 minutes later.

A number of people had been attracted to the scene of the tragedy almost simultaneously with its occurrence. Three highway patrolmen arrived within about 20 minutes.

Several of the witnesses testified that when appellant returned to the scene he smelled of alcohol, acted in an abnormal manner, and was under the influence of alcohol. The three highway patrolmen also testified that when they arrested appellant upon their arrival he could not give coherent answers, he smelled of liquor, was thick tongued, and was drunk. In later questioning the appellant told them that he had not struck the two girls, but that another automobile, which he described, had done so.

Mr. Louie Phillips, one of the highway patrolmen, testified that in investigating the scene after his arrival he observed black marks on the right curb line, 'looked like where something had been dragged.' He also observed two bloody places on the highway, one 31 feet, and the other 61 feet, in distance from the black marks previously mentioned.

Upon examination of appellant's automobile, a shoe was found caught in the underpart of the automobile on the left side of the steering sector.

Ernest Green, a witness for the State, testified he was among the first to arrive at the scene after the two girls had been hit by an automobile. Both girls were unconscious and their shoes were off. This witness 'picked one of the shoes up and put it by the LeCroy girl.'

Mr. Lowell Wilson, another witness for the State, testified that the girls were hit almost in front of his house. The next morning he found a shoe near the scene, in a stock gap leading from the street into his yard.

It thus appears that three shoes were found, two at or near the scene, and one caught in the underpart of appellant's automobile.

In this connection it appears from the record that Miss Charmine Duell, a witness for the State, testified that she was a friend of both of the victims, and was associated with them every day. She then identified two shoes as belonging to one of the dead girls, and a third shoe as belonging to the other one.

In this connection the State offered in evidence three shoes, and the record discloses the following:

'The State: We offer these three shoes identified by the witness, Duell, as being the shoes of the victims, Eulestine LeCroy and Ellen Pearl Riggs.

'Mr. Jones: We object on the ground it is irrelevant, incompetent and immaterial testimony.

'The Court: I think it has a tendency to show evidence from which the jury might draw a conclusion or inference from the fact that they have been found and identified as the shoes belonging to the two deceased girls--that it would give the jury a basis for an inference as to the speed of the car at the time of the impact.

'Mr. Jones: Irrespective of the fact that one was found the next morning?

'The Court: Yes.

'Mr. Jones: And you overrule our objection?

'The Court: Yes.

'Mr. Jones: We reserve an exception.'

The defense offered several witnesses whose testimony tended to show that appellant had not been drinking on the occasion of this dual homicide.

Several character witnesses were also presented by the defense. One of these witnesses, Mrs. Sowell, testified on cross-examination that she had heard appellant say 'that the Castleberry wreck--when he had that--he might have been drinking.'

It also appears that during the cross-examination of one of appellant's character witnesses the court overruled objections to a question propounded to him if he had not heard about appellant being arrested two or three times for driving while intoxicated, to which the witness answered: 'I heard it, but me knowing it, I do not.'

There was further evidence introduced by the defense directed toward showing that both automobiles approaching appellant's car had their full lights on.

Ernest Waters, a defense witness, testified that after being struck the girls were not hurled into the air by the impact, but that the largest rolled about 20 feet, and the other was knocked over near a telephone post.

In his own behalf the appellant testified that on the night in question he was driving along the street in Castleberry and met another car with bright lights. He dimmed his lights, but the approaching car did not dim, so he turned his lights on bright again. He slowed down to about 25 or 30 miles per hour and pulled over near his right side. He did not see the two girls, but about this time he felt his automobile bump. He proceeded down the street about 300 feet to an intersection and there turned back to see if he had hit anything.

When he returned to the scene appellant claimed he did not act in any abnormal fashion, but wanted to place the injured girls in his automobile and take them to a hospital. This was prevented by some of the people who had gathered at the scene.

Appellant denied he was in anywise under the influence of alcohol at the time, but stated he had taken one drink about 12:30 P.M. in the day.

He likewise denied telling the highway patrolmen that he had not struck the girls, but that another automobile had.

At the appellant's request the court in its oral charge to the jury instructed the jury that he was giving them a written charge to the effect that the appellant could not be convicted of manslaughter in the second degree, and that he was leaving to the jury only the charge of manslaughter in the first degree.

Later the court did, at the request of the appellant, give to the jury a written charge that if they believed the evidence in this case they could not convict the appellant of manslaughter in the second degree.

Appellant's counsel insists that the lower court erred in refusing four charges, all affirmative in nature, requested in writing by the appellant.

The indictment charged manslaughter in the first degree, an unlawful and intentional killing. Counsel urges that the evidence for the State fails to prove that appellant's act was intentional. Writing to a similar point in Reynolds v. State, 24 Ala.App. 249, 134 So. 815, 816, this court observed: 'If the defendant in this case so recklessly drove an automobile along the public highway and in such manner as to endanger human life, and death resulted, the act would be manslaughter in the first degree whether the positive intention to kill was proven or not.'

The evidence submitted by the State in the present case tends to show that this appellant, at about dusk, and while drunk, drove his automobile along a main street in the town of Castleberry at a rate of speed 'every bit of 45 or 50 miles per hour.'

In our opinion such evidence is ample to justify a jury's conclusion that appellant's conduct was wanton and evinced a reckless disregard for human life.

In Williams v. State, 30 Ala.App. 437, 7 So.2d 511, 513, the appellant had been convicted of murder in the second degree, the appellant having killed the deceased by colliding with another automobile in which deceased was riding. The evidence in the Williams case, supra, presents a picture somewhat similar to the present case. In holding that appellant's contention that he was entitled to the affirmative charge was without merit, this court asserted: 'It is too clear for comment that one, as appellant, drunk (as the jury had a right to find him to be), driving his car at the rate of fifty miles per hour up hill and around a curve, at night, colliding with another car and causing the death of a person, is in no situation to ask that the jury be instructed to acquit him of guilt.'

Appellant's counsel also urges that the court's action in granting appellant's request for the affirmative charge as to manslaughter in the second degree was a recognition by the lower court as a matter of law that if there was evidence of negligence in this case it was of such a low degree that it could not support a verdict of guilty of manslaughter in the second degree, and that therefore it could not support a verdict of guilty of manslaughter in the first degree, involving a higher degree of negligence.

The speciousness of this argument is that it does not necessarily follow that where the...