Smith v. State

• Decision Date: 09 December 1975
• Docket Number: 4 Div. 333
• Citation: 56 Ala.App. 609,324 So.2d 323
• Parties: Lorenzo SMITH v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 323

324 So.2d 323

56 Ala.App. 609

Lorenzo SMITH v. STATE.

4 Div. 333.

Court of Criminal Appeals of Alabama.

Dec. 9, 1975.

Rufus R. Smith, Jr., Dothan, for appellant.

William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State, appellee.

BOOKOUT, Judge.

Second degree manslaughter; sentence: six months hard labor for Houston County and a fine of $500.00.

The State's evidence was that on November 1, 1974, at approximately 7:30 P.M., on State Highway 123 in Houston County, Alabama, the automobile driven by the appellant, Lorenzo Smith, collided with the automobile driven by Roy Lee Sorrells, resulting in the death of James Radford Sorrells, a passenger in the latter car. No direct testimony was given by any State witness as to how the accident occurred, however, the three passengers in the Sorrells car each testified that they saw no headlights of any kind before the accident.

Roy Lee Sorrells testified that just prior to the accident, he was driving on the right side of the road; he did not swerve to the left side at all; he was not driving at an excessive speed; and he had not been drinking. It was dark and as he drove, he was watching the road ahead of him, and did not see another car, nor did he see any headlights. The next thing he remembered was awaking in the hospital. Both Pauline Sorrells and Vera Sorrells testified to substantially the same facts.

Trooper Johnny Norton, of the Alabama Department of Public Safety, testified for the State. His testimony was that he had investigated the accident. He described the location and condition of the automobiles and the position of the persons riding in each automobile. Trooper Norton properly identified four photographs marked as Exhibits 1--4. When the State offered the four photographs into evidence, the defense made the following objection which was overruled:

'We object to two of these pictures. We don't see the relevancy of these two right here, unless the State is willing to show exactly how they are to prove its case. We understand the question of impact here, but we don't see the relevance of those two pictures.'

On voir dire, Trooper Norton testified that he had talked to the appellant at Southeast General Hospital, after the accident. When Trooper Norton stated that the appellant was intoxicated, the defense stated that any evidence concerning intoxication of the appellant at that time should be inadmissible unless the State could show that he was observed from the time of the accident until his arrest. The prosecutor answered that the State was not going to offer evidence as to intoxication, but was going to offer a statement made by the appellant. Trooper Norton, on voir dire, testified that after he had advised the appellant of his Miranda rights, the appellant stated to him that he was driving the car involved in the accident and that he had been drinking. The defense objected, but the objection was overruled. When the jury returned, Trooper Norton again testified on direct examination as to the voluntariness of the statement made by the appellant, an as to giving the appellant his Miranda rights. Another objection was made, which was overruled, and the appellant's statement was related to the jury.

The last witness for the State, Frankie Ingram, testified that he was Coroner of Houston County and that upon arrival at the scene of the accident, he examined the body of James Radford Sorrells. Mr. Ingram testified that Sorrells died 'due to cause from severe blows to the head, severe chest injuries and internal bleeding.'

The State rested at this point, and the defense made a motion to exclude the State's evidence for failure to prove a prima facie case of gross negligence. The motion was overruled, and the defense called the appellant as its first witness.

The appellant testified that he remembered, on the evening of the accident, stopping in front of the driveway to the 123 Club, to turn in and that he was in the right lane. He testified on direct examination that he had consumed only two cans of beer around 4:30 P.M. or 5:00 P.M. on that date.

On cross examination, the appellant testified that he had actually consumed three cans of beer between 5:00 P.M. and 5:30 P.M., remembering that his brother-in-law had given him one at his house. On redirect, he stated that he was unconscious at the scene of the accident and that he did not regain his consciousness until later at the hospital. The appellant testified that he had consumed no alcoholic beverages from the time of the accident until the time of his arrest. He further stated that he had not started to turn into the 123 Club when the accident occurred.

Johnny Smith, appellant's brother, testified that he was a passenger in his brother's car when the accident occurred. He stated that at the time of the accident, the appellant had not crossed the center line of the highway. He further stated that the appellant had consumed no alcoholic beverages from the time he entered appellant's car until the time of the accident.

I

Appellant contends that the trial court should have granted his motion to exclude the State's evidence for failure to prove a prima facie case.

Manslaughter in the second degree has been defined in Jones v. State, 21 Ala.App. 234, 109 So. 189 (1926), as follows:

"Manslaughter in the second degree is defined as the unlawful killing of another human being, without malice and without intent to kill or to inflict the injury resulting in death, but accidentally committed by the accused while he was doing an unlawful act amounting to a misdemeanor, or accidentally committed by the accused while he was doing a lawful act, but in a grossly negligent or improper manner."

That definition has been used in: Wilson v. State, 32 Ala.App. 591, 28 So.2d 646 (1947); Garner v. State, 34 Ala.App. 551, 41 So.2d 634 (1949); Massengale v. State, 36 Ala.App. 195, 54 So.2d 85 (1951); Gill v. State, 37 Ala.App. 210, 65 So.2d 821 (1953); White v. State, 37 Ala.App. 424, 69 So.2d 874 (1954), and Ayers v. State, 48 Ala.App. 743, 267 So.2d 533 (1972).

In a case very similar to the instant case, Roberts v. State, 32 Ala.App. 20, 21 So.2d 289 (1945), Presiding Judge Bricken stated:

'The collision referred to happened, as shown by all the testimony, at about six or six-thirty o'clock on the day in question, and the testimony of several witnesses tended to show that at the from four o'clock that afternoon and up until the time of the collision, the appellant (defendant) was...