Steward v. State

• Decision Date: 18 February 1975
• Docket Number: 2 Div. 128
• Citation: 314 So.2d 313,55 Ala.App. 238
• Parties: James Curtis STEWARD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 313

314 So.2d 313

55 Ala.App. 238

James Curtis STEWARD v. STATE.

2 Div. 128.

Court of Criminal Appeals of Alabama.

Feb. 18, 1975.

Rehearing Denied March 18, 1975.

Orzell Billingsley, Jr., Birmingham, for appellant.

William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.

W. J. HARALSON, Supernumerary Circuit Judge.

Appellant was convicted of manslaughter in the second degree and sentenced to imprisonment for six months at hard labor for the county.

It appears that all or most of the persons involved in this case had witnessed a ball game at Marion on July 4, 1972, and after leaving the game were proceeding along Highway 5 in a northerly direction toward Brent.

There had been a rain and the highway was wet at a place where the collision, the basis of this case, occurred. Mr. H. C. Koster and Clyde Foster were driving two of the cars in the same direction along the highway, with H. C. Koster in the lead car and Clyde Foster driving the one in the rear. Both appeared to be running between 50 and 60 miles an hour along the right hand side of the road. It further appears from the record that two cars going in the same northerly direction passed the Foster and Koster cars at a speed of approximately 70 or 75 miles an hour. Shortly thereafter a car driven by James Curtis Steward with three other occupants, which was proceeding in the same direction towards Brent, attempted to pass the Foster and Koster cars and in attempting to do so collided with a car driven by Wesley Brooks, which was proceeding in the opposite direction. The collision seems to have been somewhat of a head-on collision and as the result thereof Wesley Brooks was killed.

It is the State's contention that the appellant was driving at a high rate of speed. One witness, a State Trooper, testified that Steward was driving approximately 75 miles an hour when he endeavored to pass the two cars when he collided with an oncoming car driven by Brooks in a head-on collision.

The appellant's contention is that he did attempt to pass the two cars and had gotten even with the second car when he saw the approaching car driven by Brooks and that he attempted to pull in between the two cars, that the Foster car speeded up and prevented him from pulling completely back on his side of the road between the two cars. He further contends that the Foster car struck the back of his automobile as he was trying to pull to his right, knocking it in the path of the oncoming Brooks car and causing the collision resulting in the death of Brooks. Appellant denies driving at an excessive rate of speed but insists that he was driving somewhere between 50 and 60 miles an hour when he approached the two cars from the rear and speeded up slightly to pass.

It further appears from the record that the highway was straight for approximately a mile in the vicinity of the wreck and that there was nothing to impede the visibility of the driver at this point.

Before entering upon the trial, appellant filed a motion requesting the court to require the State to produce the grand jury minutes and testimony taken in the cause; all of the objects, documents, and items in the possession of the State involved in the case; the names and addresses of the witnesses having knowledge of the case; and any favorable evidence to the appellant that the State might have in its possession.

After hearing testimony on the motion, it was overruled by the court and the appellant relies principally on this action of the court for error.

His argument in brief is devoted entirely to this matter and he relies heavily on many Federal cases set out therein.

The right to examine the grand jury testimony has been settled in the Alabama Courts, where it has been held a motion to require the State to produce testimony presented to the grand jury which returned an indictment was properly denied where the testimony was not preserved in writing and was not available. Sparks v. State, 46 Ala.App. 357, 242 So.2d 403.

There is no law requiring the recording of testimony before a grand jury in Alabama. The long time rule, sanctioned by our courts, is that the proceedings before a grand jury are essentially secret. This matter is thoroughly elucidated in the recent case of State ex rel. Baxley v. Strawbridge, 52, ala.App. 685, 296 So.2d 779, in an opinion by Presiding Judge Cates of this court.

No transcription or other record of the grand jury proceedings was kept in the instant case.

With regard to the other grounds of the motion above set out, it appears that the appellant's attorney had access to the names of the witnesses, and other matter held by the State and the appellant has failed to offer proof supporting these grounds.

This motion was, therefore, properly overruled by the court.

During the trial testimony was elicited that the appellant had pled guilty to reckless driving in a case arising out of the facts in the case at hand, and his counsel contends in the trial court that this plea was a bar to the trial of the instant case. Insofar as the record shows no plea to this effect was filed and the matter was only brought up after the conclusion of the State's testimony.

All pleas in criminal cases, except pleas of guilty, not guilty and not guilty by reason of insanity must be in writing and filed with the clerk of the court. Only pleas of guilty, not guilty, or not guilty by reason of insanity, may be pleaded either orally or in writing. Thomas v. State, 255 Ala. 632, 53 So.2d 340.

The general rule is that a plea of former jeopardy should be filed before, or simultaneously with, a plea of not guilty and a failure to file...