Shiver v. State, 1 Div. 351
| Decision Date | 13 March 1973 |
| Docket Number | 1 Div. 351 |
| Citation | 274 So.2d 644,49 Ala.App. 615 |
| Parties | James T. SHIVER v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Wilters & Brantley, Bay Minette, for appellant.
William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
Appellant was indicted for manslaughter in the first degree, convicted by the jury of manslaughter in the second degree with punishment fixed at twelve months at hard labor plus a fine of $500.00. Following due allocution, the trial court entered formal judgment pursuant to the jury's verdict. This appeal followed.
It appears from the State's evidence adduced prior to the defendant's evidence that the deceased was traveling south in his automobile on a public highway and had passed the crest of a hill about thirty feet when his vehicle came in violent contact with a motor vehicle being driven by defendant. The impact of the two vehicles resulted in the immediate death of Charles White who was driving the southbound vehicle. The defendant, who was driving the northbound vehicle, was severely injured.
The impact, according to the state trooper who reached the scene about ten minutes after the tragedy, occurred about the center of the driving lane of Mr. White's vehicle. The right wheels of the Shiver vehicle were on the center line of the road.
It further appears from the evidence that where the impact occurred there was a solid yellow line which was put there to indicate and set up a no passing zone. The establishment of such a zone was authorized by Tit. 36, § 58(7), Recompiled Code of Alabama, 1958, which reads:
'The department is hereby authorized to determine those portions of any highway where overtaking and passing or driving to the left of the roadway would be especially hazardous and may by appropriate signs or markings on the roadway indicate the beginning and end of such zones and when such signs or markings are in place and clearly visible to an ordinarily observant person every driver of a vehicle shall obey the directions thereon.'
Tit. 36, § 58(51), Code, supra, makes it a misdemeanor for any person to violate the above section as well as other related sections.
Manslaughter in the second degree has been defined by this Court 'as the unlawful killing of another human being, without malice and without the intent to kill or to inflict injury resulting in death, but accidentally committed by the accused while he was doing an unlawful act amounting to a misdemeanor.' Touchstone v. State, 42 Ala.App. 141, 155 So.2d 349; Pitts v. State, 40 Ala.App. 702, 122 So.2d 542.
In view of the State's evidence tending to show that the death of Mr. While ensued while the defendant was doing an unlawful act amounting to a misdemeanor, we hold that the trial court properly overruled defendant's motion to exclude the evidence.
The defendant testified:
'
The defendant on direct examination testified that he had drunk four beers from about 1:00 o'clock up to the time...
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Showers v. State
...for a mistrial and there was no motion for a new trial. In this posture of the record we cannot reach the claimed error. Shiver v. State, 49 Ala.App. 615, 274 So.2d 644; Daniels v. State, 53 Ala.App. 666, 303 So.2d 166; Wade v. State, 49 Ala.App. 601, 274 So.2d We have carefully searched th......
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Brown v. State, CR-94-1715
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