McBride v. State

• Court: Alabama Court of Appeals
• Writing for the Court: SAMFORD, J.
• Citation: McBride v. State, 20 Ala.App. 434, 102 So. 728 (Ala. App. 1925)
• Decision Date: 13 January 1925
• Docket Number: 6 Div. 702
• Parties: McBRIDE v. STATE.

102 So. 728

20 Ala.App. 434

McBRIDE v. STATE.

6 Div. 702

Court of Appeals of Alabama

January 13, 1925

Appeal from Circuit Court, Jefferson County; Fred H. Woodard Special Judge.

Herbert F. McBride was convicted of manslaughter in the second degree, and he appeals. Reversed and remanded.

Harwell G. Davis, Atty. Gen., for the State.

SAMFORD J.

The given and refused charges requested in writing by the defendant appear in the record, but the oral charge of the court does not appear. In the absence of this oral charge under Supreme Court rule 45, we will presume that the refused charges, where they state correct propositions of law, were covered by the court's oral charge. Code 1923, § 9509 Cofield v. State, 18 Ala.App. 12, 88 So. 353; Bell v. Burns, 206 Ala. 465, 90 So. 491.

The foregoing does not apply to the giving or refusing of the general affirmative charge. Where a defendant is entitled to general instructions to acquit under the evidence, and there is a bill of exceptions purporting to set out all of the testimony on the trial, and a request for the general charge marked refused by the presiding judge appears in the record the question of its refusal is properly raised in this court.

It is also a well-settled rule of law in this jurisdiction that where there is sufficient evidence introduced on the trial from which the jury can legally infer guilt, their verdict will not be disturbed on appeal.

In this case the defendant was indicted on a charge of manslaughter, in that he did, in the doing of an unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, kill Sarah Clark by running over her with an automobile. 129 Corpus Juris, p. 1148 (134). The evidence tends to show that some persons driving a Velie automobile ran over and killed the deceased at the intersection of Twenty-Sixth street and Avenue F in the city of Birmingham; that the car was coming from Twenty-Sixth street into Avenue F at the rate of speed of from 30 to 35 miles per hour; that the homicide occurred about the middle of Avenue F and on a line with the sidewalks on Twenty-Sixth street to the right into Avenue F. Section 20 of Acts 1911, p. 634 et seq., provides among other things:

"Any *** person so operating a motor vehicle shall, at the intersection of public highway keep to the right of the intersection of the center of such highway when turning to the right and pass to the right of such intersection when turning to the left."

If therefore, the person driving the automobile which killed deceased did not keep to the right of the intersection of the center of Twenty-Sixth and Avenue F while turning from Twenty-Sixth street into Avenue F, such person was guilty of a violation of section 20, Acts 1911, p. 634 (Code 1923, § 6266), and punishable under section 3333 of the Code of 1923. There was evidence...