Lewis v. State

• Decision Date: 14 April 1936
• Docket Number: 4 Div. 213
• Parties: LEWIS v. STATE.
• Court: Alabama Court of Appeals

167 So. 608

27 Ala.App. 155

LEWIS v. STATE.

4 Div. 213

Court of Appeals of Alabama

April 14, 1936

Appeal from Circuit Court, Russell County; J.S. Williams, Judge.

Willie Lewis was convicted of manslaughter in the first degree, and he appeals.

Reversed and remanded.

J.W Brassell, of Phenix City, for appellant.

A.A. Carmichael, Atty. Gen., for the State.

BRICKEN Presiding Judge.

This prosecution grew out of a deplorable tragedy wherein the life of an estimable woman was lost by having been struck by an automobile driven by this appellant.

This is the second appeal in this case. 26 Ala.App. 515, 162 So. 552.

We find upon investigation that evidence upon the former trial was practically the same as that adduced upon the second trial from the judgment of which this appeal was taken. This is substantially true also as to the points of decision involved. On the former appeal this court held that the evidence afforded merely a scintilla of the guilt of the defendant, and that his conviction was against the great preponderance of the testimony, and for this reason only declined to put the court to error for refusing the defendant's general affirmative charge. The foregoing conclusion of this court upon this point was inadvertent and erroneous in view of the decision of the Supreme Court in the case of Ex parte Grimmett, 228 Ala. 1, 152 So. 263, in which case the court said:

"The Court of Appeals [Grimmett v. State, 26 Ala.App. 56, 152 So. 262], in the opinion brought under review, by the petition for the writ of certiorari, applying the rule which obtains in civil cases in this jurisdiction, holds that: 'A scintilla of evidence, going to support the state's contention, necessitates reference of issue raised thereby to the jury for decision, at least in first instance'--citing in support of this holding Norwood Hospital v. Brown, 219 Ala. 445, 122 So 411.

"After an examination of the authorities, we have been unable to find any decision of this or any other court of last resort that has invoked the 'scintilla rule' to uphold a criminal prosecution.

"The general rule, to which there are some exceptions, is that, on the trial of the issue in civil cases, the parties enter upon the trial, unaided by any presumptions, with the burden on the party asserting the affirmative of the issue, but in criminal prosecutions, where the plea of not guilty is interposed, the defendant goes to trial attended by the presumption of innocence, which, under the uniform holdings of this court, is a matter of evidence which attends him through the trial."

The scintilla rule has no application in a criminal case. It may be applied only in a civil proceeding. McKee v. State, 26 Ala.App. 589, 164 So. 305; Grimmett v. State, 26 Ala.App. 56, 152 So. 262; Ex parte Grimmett, 228 Ala. 1, 152 So. 263. In McKee's Case, supra, this court said:

"The scintilla rule has no application in a criminal prosecution, where the accused enters upon his trial clothed with the presumption of innocence. Such presumption is evidentiary in its nature and by which the accused is accompanied throughout the trial, or until such period thereof, where his guilt is established by the evidence beyond a reasonable doubt and to a moral certainty. Which means, in effect, there must be substantial legal evidence to prove all the elements of the offense charged. Ex parte Grimmett, 228 Ala. 1, 152 So. 263. Randolph v. State, 100 Ala. 139, 14 So. 792."

This court having determined and declared that from all the evidence in the case on the former appeal a mere scintilla of evidence going to support the charge against the defendant was afforded should have held, as we now do, the same conclusion having been reached, that the court committed error in refusing to defendant the general affirmative charge requested by him in writing.

The indictment in this case charged the defendant with the offense of manslaughter in the first degree. He was convicted as charged.

Under circumstances similar to those here charged, the law is, to constitute manslaughter in the first degree, there must be either a positive intention upon the part of the accused to kill the deceased, or an intentional act of violence from which, ordinarily, in the usual course of events, the death of the deceased resulted.

In the instant case there is no insistence upon the part of the state that the homicide complained of was the result of the intentional act of the accused, and we think this affirmatively appears, as the defendant did not know the deceased, and so far as the record shows had never seen or heard of her before the fatal accident. This fact is further evidenced by the testimony of state witness O.O. Gay, the chief of police, who testified defendant stated to him: He (defendant) told me "he was driving along the best he could and all of a sudden a car appeared in front of him, he says: 'I just wheeled my car to the right to try to miss it,' and he said he was right up on it...