Reed v. State, 6 Div. 122.
| Decision Date | 28 April 1932 |
| Docket Number | 6 Div. 122. |
| Citation | 142 So. 442,225 Ala. 219 |
| Parties | REED v. STATE. |
| Court | Alabama Supreme Court |
Rehearing Denied June 16, 1932.
Certiorari to Court of Appeals.
Petition of Ollie Reed for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in Reed v. State, 142 So. 441.
Writ denied.
R. M Montgomery, of Birmingham, for petitioner.
Thos E. Knight, Jr., Atty. Gen., for the State.
The defendant was indicted and tried for murder in the first degree, but was acquitted of murder in the first degree and convicted of murder in the second degree. The only theory upon which a conviction was sought was under the fourth division of section 4454 of the Code of 1923, defining murder in the first degree and dealing with homicides "Perpetrated by any act greatly dangerous to the lives of others, and evidencing a depraved mind regardless of human life, although without any preconceived purpose to deprive any particular person of life, is murder in the first degree." This is a statutory offense, that is, in being made a capital felony. Mitchell v. State, 60 Ala. 26. As the defendant was acquitted of this offense, the question arises, Did the evidence, as set out in the opinion of the Court of Appeals, make out a case of murder in the second degree? We have no statutory definition of murder in the second degree other than the concluding part of section 4454 that "every other homicide, committed under such circumstances as would have constituted murder at common law, is murder in the second degree." As we understand, from the substance of the facts set out in the opinion of the Court of Appeals, the defendant was guilty of gross negligence or wanton misconduct, but we find no authority, English or American, holding that they would constitute murder under the common law. Indeed, every case we find dealing with injuries by automobiles of this character treat the same as manslaughter and not murder. State v. Goetz, 83 Conn. 437, 76 A. 1000, 30 L. R. A. (N. S.) 458; Rex v. Grout, 6 Car. & P. 629; Rex v. Timmins, 7 Car. & P. 499; Rex v. Walker, 1 Car. & P. 320; Rex v. Green, 7 Car. & P. 156; Rex v. Mastin, 6 Car. & P. 396, (English). "To cause death by using a public way carelessly is manslaughter only, because the proper and careful use of it is lawful." Bishop on Criminal Law, 2d Vol. (9th Ed.) § 689, subdiv. 3. ...
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