Rombokas v. State

• Decision Date: 17 March 1936
• Docket Number: 8 Div. 925
• Citation: 27 Ala.App. 227,170 So. 780
• Parties: ROMBOKAS v. STATE.
• Court: Alabama Court of Appeals

170 So. 780

27 Ala.App. 227

ROMBOKAS v. STATE.

8 Div. 925

Court of Appeals of Alabama

March 17, 1936

Rehearing Denied June 30, 1936

Appeal from Circuit Court, Lauderdale County; J. Fred Johnson, Jr. Judge.

Andrew Rombokas was convicted of manslaughter in the second degree and he appeals.

Affirmed.

Certiorari denied by Supreme Court in Rombokas v. State (8 Div 750) 170 So. 782.

T.C. Almon, of Decatur, for appellant.

A.A. Carmichael, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen., for the State.

RICE Judge.

It is a violation of the law of Alabama for any person to "drive any vehicle," meaning and including, especially, any motor vehicle, such as an automobile, upon any highway within this state while "under the influence of intoxicating liquor." Gen.Acts Ala. 1927, pp. 348, 365 (section 48), codified, but incorrectly, as section 1397(50), Michie's Code of 1928. See, also, Code 1923, § 3324, though we will not stop to inquire whether or not one may be "under the influence of intoxicating liquor" without being intoxicated. See Standard Life & Accident Insurance Co. v. Jones, 94 Ala. 434, 10 So. 530.

A commission of an unlawful act, resulting, proximately, in the unintentional death of another, renders the actor guilty of manslaughter in the second degree. Crisp v. State, 215 Ala. 2, 109 So. 287, as related to Crisp v. State, 21 Ala.App. 449, 109 So. 282.

And, of course, upon a trial under a count in an indictment charging manslaughter in the first degree, there may be a conviction of the offense of manslaughter in the second degree. Thompson v. State, 131 Ala. 18, 31 So. 725.

We find no error in the overruling of the demurrers to the several counts of the indictment. Thompson v. State, supra.

Appellant, driving his automobile, alone, from Decatur through Athens and Rogersville to Florence, picked up Mable Terry, a young girl hitchhiker, at her own request, as he was leaving Decatur. By his own statement he had or purchased, or both, whisky, along the route, which he and the girl drank rather freely. By the time he had reached Rogersville, the evidence is ample that he was "under the influence of whiskey."

A short distance beyond Rogersville, toward Florence, his car was wrecked by, as he says, his taking his hands from the steering wheel for the purpose of lighting a cigarette--the car going into a ditch and the girl grabbing the steering wheel. The car was overturned.

There was evidence from which the jury could rightfully infer that at the time of the wreck the girl was sitting, with his full permission, in appellant's lap. The girl received injuries in the wreck from which she died.

There seems little to be said. The learned trial judge gave to the jury at appellant's request a very great number of written charges. These, in connection with the comprehensive oral charge, presented fairly every phase of his defense.

The whole case boiled down to the simple issue: Did, or not, the fact ...