Nixon v. State

• Decision Date: 11 September 1958
• Docket Number: 7 Div. 387
• Citation: 105 So.2d 349,268 Ala. 101
• Parties: Sip NIXON v. The STATE of Alabama.
• Court: Alabama Supreme Court

Page 349

105 So.2d 349

268 Ala. 101

Sip NIXON v. The STATE of Alabama.

7 Div. 387.

Supreme Court of Alabama.

Sept. 11, 1958.

Morel Montgomery, Birmingham, and Wales W. Wallace, Columbiana, for appellant.

John Patterson, Atty. Gen., and Geo. D. Mentz, Asst. Atty. Gen., for the State.

COLEMAN, Justice.

Appellant, defendant below, was indicted for and convicted of murder in the second degree for homicide caused by an automobile operated by defendant on a public highway in Shelby County. He was sentenced to twenty-five years imprisonment in the penitentiary.

Three school children were killed. They had alighted from a school bus shortly before the accident. The bus was traveling in the direction opposite to the direction in which defendant was driving the automobile. The children, after getting out of the bus, had crossed the highway and were walking along the shoulder of the road on the right-hand side in the same direction as that in which defendant was driving the car at a speed estimated at 60 to 80 miles per hour.

There was another school bus in front of and traveling in the same direction as the one in which the children had been riding, that is, opposite to defendant's direction of travel. The evidence tended to show that defendant had come over a slight hill, and in meeting this other bus had veered to defendant's left side of the road and narrowly missed colliding with this other bus. Defendant's automobile traveled back across the highway and into a ditch on his right-hand side of the road approaching the children from their rear. Before striking them, the automobile struck a mail box, knocked it up into the air and then proceeded 50 to 60 feet, struck the children and knocked them up into the air and some distance from the point of impact. The automobile continued on in its same direction and turned over on the right side some 60 to 300 feet from the mail box.

There was testimony tending to show that after the accident, the hood of the car was open and that underneath the hood at the back part thereof in front of the dashboard or fireboard, there was human hair. Defendant argues that the presence of hair at that place shows the hood was open prior to striking the children.

There was evidence that defendant's breath smelled heavily of alcohol immediately after the accident, and that when defendant came back to the place of the accident a few minutes thereafter, defendant said in substance, 'I got to leave here.' The only evidence offered by defendant was such as to tend to show his good character.

Appellant argues that the trial court erred in overruling the demurrer to the indictment, on the several grounds to the effect that the indictment fails to charge any offense known to the law, fails to charge murder in the second degree, and there is a mis-joinder of offenses.

The indictment follows Title 15, § 259, Form 81, Code of 1940, for murder in the second degree. An indictment in substantially the same form was by this court held sufficient to charge second degree murder in Ward v. State, 96 Ala. 100, 11 So. 217.

Because all the homicides charged in the instant case are shown by Count I of the indictment, and also by the evidence, to have been the result of a single act done by the defendant, there is no misjoinder of offenses, or duplicity, in the indictment.

'* * * In Ben v. State, 22 Ala. 9, 58 Am.Dec. 234, a count in the indictment charging the administering of poison to three different persons by one act was held to charge a single offense. * * *' Jones v. State, 19 Ala.App. 600, 602, 99 So. 770, 771.

The trial court did not err in overruling the demurrer.

Appellant duly excepted to the following portion of the oral charge of the trial court:

'If the defendant committed on the person of the deceased an act of violence which produced death and at the time he inflicted such act he had the intention to kill or intended to do an act of violence from which ordinarily in the usual course of events death or great bodily harm may be the consequence he may be guilty or murder in the second degree. Our courts have said that where the accused is himself the driver of an automobile and drives in a manner greatly dangerous to the lives of others so as to evidence a depraved mind regardless of human life he may be guilty of murder in the second degree, if his anti-social act results in death of another, and this though he had no preconceived purpose to deprive any particular human being of life. Under such circumstances his acts are unlawful and without legal excuse, and malice may be inferred therefrom.'

In Harrington v. State, 83 Ala. 9, 16, 3 So. 425, 428, this court said:

'* * * In order to constitute manslaughter in the first degree, there must be either a positive intention to kill, or an act of violence from which, ordinarily, in the usual course of events, death or great bodily injury may be a consequence. * * *'

The same or similar language is used to define manslaughter in the first degree in the following cases: Williams v. State, 83 Ala. 16, 3 So. 616; White v. State, 84 Ala. 421, 4 So. 598; Hornsby v. State, 94 Ala. 55, 10 So. 522; Reynolds v. State, 154 Ala. 14, 45 So. 894; Fowler v. State, 161 Ala. 1, 49 So. 788; Jones v. State, 13 Ala.App. 10, 68 So. 690; Reynolds v. State, 24 Ala.App. 249, 134 So. 815; Kitchens v. State, 31 Ala.App. 239, 14 So.2d 739; Jones v. State, 33 Ala.App. 451, 34 So.2d 483; Gills v. State, 35 Ala.App. 119, 45 So.2d 44; Clayton v. State, 36 Ala.App. 175, 54 So.2d 719; Gurley v. State, 36 Ala.App. 606, 61 So.2d 137; Harris v. State, 36 Ala.App. 620, 61 So.2d 769; Turner v. State, 38 Ala.App. 73, 77 So.2d 503; Gilliam v. State, 38 Ala.App. 420, 89 So.2d 584.

In the instant case, the first statement in the portion of the charge to which exception was taken, to wit:

'If the defendant committed on the person of the deceased an act of violence which produced death and at the time he inflicted such act he had the intention to kill or intended to do an act of violence from which ordinarily in the usual course of events death or great bodily harm may be the consequence he may be guilty of murder in the second degree.'

is an incorrect statement of the law.

In Harold v. State, 12 Ala.App. 74, 67 So. 761, the trial court refused the following written charge requested by defendant:

'(41) To constitute murder in the second degree, defendant must inflict an act of violence which produces death, with intent to kill decedent, or do an act of violence which ordinarily in the usual course of events produces death or does great bodily harm. To constitute manslaughter in the first degree, defendant must have an intention to kill or inflict an act of violence which ordinarily or in the usual course of things produces death or great bodily harm.'

The Court of Appeals said:

'Charge 41 was properly refused, because the definition of 'murder in the second degree' and of 'manslaughter in the first degree,' as given in the charge, is the same. While such definition is correct, as far as it goes, yet it fails in completeness and fails to distinguish between these two degrees of homicide, and would consequently have left the impression on the minds of the jury that there is no difference between them, and that murder in the second degree and manslaughter in the first degree were one and the same thing in law; whereas, in fact murder is characterized by malice, which the charge ignores, and manslaughter by an absence of malice, which the charge likewise ignores.' 12 Ala.App. 74, 81, 82, 67 So. 761, 763.

In Harrington v. State, supra, this court also said '* * * voluntary manslaughter * * * is distinguished from murder by the absence of malice, express or implied; * * *.' 83 Ala. 9, 15, 3 So. 425, 428.

See also Bluitt v. State, 161 Ala. 14, 17, 49 So. 854; Jackson v. State, 74 Ala. 26, 31; Mitchell v. State, 60 Ala. 26, 32.

In considering defendant's exception to the oral charge, we are not unmindful of the rule that '* * * the portion of the charge here excepted to should be construed in connection with the whole charge of the court * * *.' Ex parte Cowart, 201 Ala. 525, 526, 78 So. 879, 880; Ala. Digest, Criminal Law k822(1). In the instant case, the oral charge undertook to state to the jury several alternative definitions of murder in the second degree. The statement which we have been considering may fairly have been understood by the jury to be one of those alternatives. The statement is incorrect because it ignores malice as an essential ingredient of murder in the second degree, and is prejudicial to defendant because it instructs the jury that if defendant did that which in law is only manslaughter in the first degree he might be guilty of the higher offense of murder in the second degree.

The remainder of the excepted to portion of the oral charge states a second proposition which is also an incorrect definition of murder in the second degree although it is substantially identical with a statement in the opinion in Berness v. State, 38 Ala.App. 1, 83 So.2d 607. As used in that opinion the statement did not undertake to state a correct charge on, or even a definition of, murder in the second degree. The statement was a premise to consideration of one of the questions in that case, which was whether or not a defendant could be convicted of murder in the second degree when another was driving the...