State v. Massey

• Decision Date: 10 June 1924
• Docket Number: 6 Div. 554.
• Parties: STATE v. MASSEY.
• Court: Alabama Court of Appeals

100 So. 625

20 Ala.App. 56

STATE v. MASSEY.

6 Div. 554.

Court of Appeals of Alabama

June 10, 1924

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Proceeding by petition for habeas corpus to fix bail for Chester Massey. From a judgment admitting the defendant to bail, the State appeals. Affirmed.

Harwell G. Davis, Atty. Gen., Jim Davis, Sol., and Willard Drake Asst. Sol., both of Birmingham, for the State.

Gibson & Davis, of Birmingham, for appellee.

FOSTER J.

The appeal in this case is by the state from an order of court allowing the petitioner bail; he being restrained by virtue of an indictment charging murder in the first degree.

On March 3, 1924, at about 12:45 a. m. the petitioner, while driving a five-passenger automobile westward on avenue F, in the city of Birmingham, collided with a Louisville &amp Nashville Railroad freight train where the railroad tracks of said company cross avenue F at Seventh street. At the time of the collision there were riding in the car with petitioner Mrs. Bowden (the deceased) and three other persons. The automobile collided with a car estimated to be about the twentieth car back of the engine pulling the train, and at the time of the collision was going at such a rate of speed estimated at 40 miles an hour, that the automobile was almost completely demolished, and the car in the train that was struck by the automobile was badly damaged. All of the occupants of the car were rendered unconscious by the collision, and Mrs. Bowden lived but a short time afterward.

Massey the petitioner, invited the other occupants of the car to go with him to his home over Red Mountain, in Shades Valley, for the purpose of securing his time book. After the time book was secured, the party located about a half gallon fruit jar almost full of corn whisky, and partook freely thereof. There was testimony that Massey was in such condition from the effects of the liquor that he was importuned by two of the occupants to relinquish the steering wheel to Mr. Lockett, but that he replied, "I can drive better when I am drunk than when I am sober," and continued driving, going down Red Mountain into Birmingham, down Fifteenth street to avenue F, and west on avenue F to the point of collision. There was testimony that Lockett, at a point about two blocks from the point of collision, observed that the crossing was occupied by a passing freight train, and called to Massey, "There is a man on the rail." Massey's reply was, "I can make it." All of the witnesses who testified as to the rate of speed of the automobile just before and at the time of the collision gave it in their judgment at 40 miles an hour, except Massey, who claimed he was not running over 22 or 23 miles an hour. Massey admitted drinking some liquor which he said had a "kick" in it, denied all knowledge that the train was on the crossing, claimed he did not see it, or the red light, denied that Lockett told him that there was a man on the rail, or that any one made any suggestion to him that he was too drunk to drive the automobile. Avenue F is a much-used thoroughfare, a great deal of traffic passes over it both day and night. There are five or six Louisville & Nashville Railroad tracks that cross avenue F at the point of the collision, and much traffic is moved by the railroad over this crossing.

The third count in the indictment was laid under the fourth division of first degree murder as appears in section 7084 of the Code of 1907, which is as follows:

"Every homicide *** 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."

In the case of Mitchell v. State, 60 Ala. 26, Judge Stone, speaking for the court, says:

"It will be observed, however, that this fourth class omits all mention of the words, malice aforethought, formed design, willful, deliberate, malicious, premeditated, unlawfully and maliciously, some of which are found in all the common-law definitions of murder, save that from universal malice."

And:

"We think the Legislature, in this clause, intended to raise to the high grade of murder in the first degree those homicides which are the result of what is called 'universal malice.' By universal malice, we do not mean a malicious purpose to take the life of all persons. It is that depravity of the human heart, which determines to take life upon slight or insufficient provocation, without knowing or caring who may be the victim. The supreme depravity shown in this so-called universal malice, is considered as the equivalent of the strong adjectives, willful, deliberate, malicious, and premeditated, which characterize the first class of murder in the first degree."

The above pronouncement was approved in Johnson v. State, 203 Ala. 30, 81 So. 820.

"If the act done was an unlawful act, and the doing of it was directly perilous to human life, and so known to the wrongdoer, that then there is implied such a high degree of conscious and willful recklessness as to amount to that malignity of heart constituting malice. The result may not have been intended, yet the deliberate and conscious doing of an act the probable consequence of which was death, amounts to murder at common law." Tarvers

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