Lashley v. State

• Decision Date: 18 January 1938
• Docket Number: 4 Div. 330.
• Citation: 28 Ala.App. 86,180 So. 720
• Parties: LASHLEY v. STATE.
• Court: Alabama Court of Appeals

180 So. 720

28 Ala.App. 86

LASHLEY v. STATE.

4 Div. 330.

Court of Appeals of Alabama

January 18, 1938

Rehearing Denied Feb. 8, 1938.

Appeal from Circuit Court, Coffee County; W. L. Parks, Judge.

Barney Lashley was convicted of violating the Highway Law, and he appeals.

Reversed and remanded.

Certiorari denied by Supreme Court in Lashley v. State, 180 So 724.

See also, Lashley v. State, 180 So. 717.

P. B. Traweek, of Elba, for appellant.

A. A Carmichael, Atty. Gen., and Clarence M. Small, Asst. Atty. Gen., for the State.

BRICKEN Presiding Judge.

The judgment in this case, from which this appeal was taken, appears from the record to have been rendered in the court below on the 30th day of November, 1936. The appeal was submitted here on November 4, 1937. The case was taken up for consideration by this court on December 13, 1937, and, the writer being impressed by certain of the demurrers which were interposed to the indictment, at the time realizing the importance of the points of decision involved, we deemed it advisable and did certify certain of said questions to the Supreme Court, under the provisions of section 7322, Code of Alabama 1923. The Supreme Court responded to said inquiry on January 11, 1938. 180 So. 717. For the guidance of all concerned, we deem it proper to incorporate in this opinion our certification of the questions to the Supreme Court, and said court's response thereto. These documents are as follows:

"Certification to the Supreme Court.

"There is pending in the Court of Appeals of Alabama an appeal from a judgment of conviction, in the circuit court, upon an indictment in words and figures as follows:

" 'The Grand Jury of said County charge that before the finding of this indictment that Barner Lashley, alias Barney Lashley, alias Bernard Lashley, whose name is to the Grand Jury otherwise unknown, who was the driver of a vehicle, to-wit: an automobile, upon a public highway in Coffee County, Alabama, which said automobile was involved in an accident resulting in injury, or death to a person, or damage to property upon a public highway in Coffee County, Alabama, did not give his name and address, and the registration license number of his vehicle, and did not render to any person injured in said accident reasonable assistance, including the carrying of such person injured to a physician or surgeon for medical or surgical treatment, and it was apparent that such treatment was necessary or was requested by such injured person, or did not immediately stop such vehicle at the scene of said accident.

" 'Against the Peace and Dignity of the State of Alabama.'

"Said indictment was drawn under, and as for a violation of section 76 of the Highway Code of the General Acts of Alabama 1927, page 376, which section provides as follows:

" 'Section 76. Duty to Stop in Event of Accident.

" '(a) The driver of any vehicle involved in an accident resulting in injury or death to any person or resulting in the damage to property, shall immediately stop such vehicle at the scene of such accident.

" '(b) The driver of any vehicle involved in an accident resulting in injury or death to any person or damage to property shall also give his name and address, and the registration license number of his vehicle and shall render to any person injured in such accident reasonable assistance, including the carrying of such person injured to a physician or surgeon for medical or surgical treatment if it is apparent that such treatment is necessary or is requested by such injured person.

" '(c) Every person convicted of violating this section, relative to the duty to stop in the event of accidents shall be punished by imprisonment in the county or municipal jail for not less than thirty days nor more than one year or in the state prison for not less than one nor more than five years or by fine of not less than one hundred dollars nor more than five thousand dollars or by both such fine and imprisonment. The court shall revoke the permit or license of the person so convicted.'

"Certain demurrers were interposed to the indictment, supra, in and by which numerous alleged infirmities in the indictment are attacked and insisted upon. We may not advert to each of the insistences raised by demurrer, but confine ourselves, in this inquiry or certification, to the abstract questions: (1) Does the act of the Legislature, supra, contravene section 6 of the Alabama Constitution 1901, in that the defendant is not apprised of the nature or character of the accusation against him, for the reason that he cannot know whether he is charged with a felony or a misdemeanor. (2) Are the prescribed duties of an accused enumerated in subdivision (b) of the statute, supra, made an offense under the provisions of said statute, and is there any punishment provided therein for failure to comply with such duties. Further, if said provisions are made a criminal violation, is it not in conflict with the 'due process' clause in the Constitution of the United States [Amendment 14] and of section 6 of the Constitution of Alabama, 1901.

"The foregoing is certified under provisions of section 7322, Code of Alabama, 1923.

"This December 13, 1937."

"Response to certified question from the Court of Appeals.

"In answer to your inquiry in so far as it relates to section 6 of the Constitution, which requires that in all criminal prosecutions the accused shall have a right to demand the nature and cause of the accusation, we think the indictment is sufficient. It describes the charge. There is no requirement that the indictment shall inform accused whether the charge is a felony or a misdemeanor. But, if it did, still there would be no failure in that respect.

"True, the act provides that the punishment shall be either a fine or imprisonment in the county jail or state prison. And true also section 3874, Code, defines a felony as an offense which may be punished by death or by imprisonment in the penitentiary; all other offenses are misdemeanors.

"But 'It is the capacity of an offense to be punished by confinement in the penitentiary and not that such punishment of necessity follows conviction of that crime,' that is the controlling quality of a felony as defined by section 3874, Code. Clifton v. State, 73 Ala. 473, 475; Turner v. State, 40 Ala. 21; State v. Hall, 24 Ala.App. 336, 134 So. 898.

"So that, if section 6 of the Constitution required information to accused of whether the charge is a misdemeanor or felony, the requirement would be answered here, since the charge is a felony because it may be punished by imprisonment in the penitentiary. So that section 6 is not here violated, for the two reasons (1) it does not require that the accusation be designated as a misdemeanor or felony, but that accused is entitled to the nature and cause of the accusation and a copy of it. (2) If he were entitled to have the charge so described, the indictment here being considered describes a felony.

"The Court of Appeals in the case of State v. Hall, supra, acted upon an indictment not distinguishable in the respect here under consideration, and correctly, we think, held that it charges a felony.

"In answer to your second inquiry, we think that subsection (c), § 76, declaring the existence of the crime (for violating this section relative to the duty to stop in the event of accidents), refers to subsection (b) as well as (a).

"Section 76 has a title showing that its purpose is in respect to the 'duty to stop in event of accident.' Subsections (a) and (b) declare those duties. Subsection (c) fixes a penalty for violating this section relative to the duty to stop in event of accidents; (a) makes it a duty to stop; (b) requires certain conduct after stopping. They both relate to what the section is about--'duty to stop in event of

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