Pippin v. State

• Decision Date: 14 July 1923
• Docket Number: 4 Div. 895.
• Parties: PIPPIN v. STATE.
• Court: Alabama Court of Appeals

97 So. 615

19 Ala.App. 384

PIPPIN v. STATE.

4 Div. 895.

Court of Appeals of Alabama

July 14, 1923

Rehearing Denied Oct. 16, 1923.

Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.

Ed Pippin, alias, etc., was convicted of manslaughter in the second degree, and appeals. Affirmed.

These charges were refused to defendant:

"3. The court charges the jury that before they can convict the defendant under this indictment they must be convinced beyond all reasonable doubt that the defendant intentionally and willfully drove his automobile against the wagon upon which deceased was riding, or that his conduct at the time was of such nature as be so grossly careless as to imply a criminal intent.

"4. The court charges the jury that before you are authorized to convict the defendant of any offense under the indictment you must be convinced beyond all reasonable doubt that the defendant willfully or intentionally drove the automobile against the wagon upon which deceased was riding, or that he drove said automobile so grossly negligent as to imply a criminal intent.

"5. The court charges the jury that unless they believe from the evidence, beyond all reasonable doubt, that the defendant drove the car over the deceased, or against the deceased, or against a wagon on which the deceased was riding, intentionally, then you should find the defendant not guilty.

"6. The court charges the jury that if the striking of deceased with the automobile driven by defendant, or the striking of the wagon by the car driven by defendant, was accidental, then you cannot convict the defendant.

"7. The court charges the jury unless they are convinced from the evidence beyond all reasonable doubt that the defendant at the time of the alleged homicide was violating the law of the state of Alabama, or guilty of such gross negligence as to imply criminal intent, then they cannot convict the defendant under this indictment.

"8. The court charges the jury that the driving of said automobile along the highway or public road at a high rate of speed is not per se a violation of the law.

"9. The court charges the jury that they must believe from the evidence, beyond all reasonable doubt, that the running over of deceased, or striking deceased, with the automobile, or driving the automobile against the wagon on which the deceased was riding was intentional on the part of the defendant, and if the jury has a reasonable doubt arising out of all the evidence that the driving over of deceased, or driving against the deceased, or driving the automobile against the wagon upon which the deceased was riding, by the defendant was accidental, then they must find the defendant not guilty.

"10. The court charges the jury that before they can convict the defendant under this indictment they must be convinced beyond all reasonable doubt that the defendant intentionally drove his automobile over the deceased, John Johnson, or against the deceased, John Johnson, or against the wagon upon which the deceased, John Johnson, was riding, or that the defendant drove said automobile so grossly negligent as to imply a criminal intent.

"11. The court charges the jury that before they can convict the defendant under this indictment they must be convinced beyond all reasonable doubt that the defendant intentionally drove his automobile over the deceased, John Johnson, or against the deceased, John Johnson, or against the wagon upon which the deceased was riding, or that the defendant drove said automobile so grossly negligent as to imply a criminal intent, and the burden is upon the state to convince you beyond all reasonable doubt of guilt of the defendant.

"12. The court charges the jury that before they can convict the defendant under this indictment they must be convinced beyond all reasonable doubt that the defendant intentionally drove his automobile over the deceased, John Johnson, or against the deceased, John Johnson, or against the wagon upon which the deceased, John Johnson, was riding or that defendant drove said automobile so grossly negligently as to imply a criminal intent, and, unless the state has so satisfied you, you should acquit the defendant."

E. C. Boswell, of Geneva, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

FOSTER J.

The indictment contained three counts. The case was submitted to the jury on the third count, which charged that the defendant unlawfully and with malice aforethought killed John Johnson by driving an automobile against a wagon on which the said Johnson was riding, and knocking him therefrom. Demurrers were interposed to the third count on the grounds that it did not allege the means or instrument used to effect the death of the deceased, and that it did not show whether the deceased was killed by the driving of an automobile against the wagon or by being knocked from the wagon.

The indictment charges that the automobile driven against the wagon knocked the deceased therefrom. The instrument of death was the automobile in the control of, and operated by, the defendant. The indictment fully informed the defendant that he was charged with driving an automobile against a wagon in which deceased was riding and in this manner knocking the deceased therefrom and killing him. The indictment was sufficient. The court properly overruled the demurrer.

The defendant was convicted of manslaughter in the second degree.

The evidence for the state tended to show that the defendant drove his automobile along the public road at a high rate of speed-about 40 miles an hour-at the time and place of the accident; that the deceased and two boys were riding in a wagon along the road going in the same direction the defendant was driving his car; that defendant approaching from the rear drove his automobile against the rear wheel of the wagon, in this manner knocking the deceased therefrom and killing him; that the wagon was on the extreme right of the road and there was sufficient room for two cars to pass abreast in the road on the left of the wagon. There was some evidence that some distance up the road just a short time before the accident defendant had...