Willis v. State
| Decision Date | 26 March 1940 |
| Docket Number | 8 Div. 828. |
| Citation | 29 Ala.App. 365,197 So. 62 |
| Parties | WILLIS v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied May 14, 1940.
Appeal from Circuit Court, Franklin County; W. H. Quillin, Special Judge.
Ed Willis was convicted of manslaughter in the first degree, and he appeals.
Reversed and remanded.
Certiorari denied by the Supreme Court in Willis v. State (8 Div. 56) 197 So. 67.
Bradshaw & Barnett, of Florence, and Wm. Stell of Russellville, for appellant.
Thos S. Lawson, Atty. Gen., and Noble J. Russell, Asst. Atty Gen., for the State.
The indictment in this case originally contained four counts. Before entering upon the trial the second count was nol prossed by the court upon motion of the Solicitor. It is clearly evident that the conviction of this appellant was under count 1 of the indictment which reads as follows: "The Grand Jury of said County charges that before the finding of this indictment Ed Willis, whose name is to the Grand Jury otherwise unknown, unlawfully and intentionally but without malice, killed Linnie Olen Grissom, whose name is to Grand Jury otherwise unknown, by driving an automobile, against or over him."
The jury returned the following verdict: "We the jury find the defendant guilty of manslaughter in the first degree and fix his punishment at imprisonment in the State penitentiary for six years." The trial court thereupon sentenced the defendant in accordance with the verdict of the jury. From the judgment of conviction pronounced and entered this appeal was taken.
Upon the trial of the case in the court below the State offered evidence tending to show that on or about June 12, 1937, Linnie Olen Grissom, the deceased named in said indictment, Elston Hester, and Zollie Hester were employees of Franklin County, Alabama, and at that time were engaged in sprinkling with water the top surface of a public highway of said county, known as the "Russellville-Molton Road." At this time the said Linnie Olen Grissom and Elston Hester were, each, the driver of a water truck for said county. On this day two water trucks of said county were parked, or at a standstill, at a point in said highway near what is known as the "Sloss Company's Dam." The red truck which was being driven by Elston Hester and which had been filled with water, was headed westward toward Russellville and the green truck, which was being driven by the deceased, was to the rear of said red truck and headed in the same direction, and was then being filled with water. The distance between the two trucks was about the length of one of them. As these trucks stood in the highway at or near said point the left hand wheels thereof were in the highway and the right hand wheels thereof were off of the highway.
Zollie Hester was the operator of the water pump by which said water trucks were filled at this time and place.
The State's testimony further tended to show that about a little after 4 o'clock, P. M. on June 12, 1937, Ed Willis, the defendant named in said indictment, while driving his automobile along said highway, passing the above two water trucks, and traveling at a rate of speed testified to by some of the State's witnesses as being not less than 50 miles per hour, and along that portion of said highway, which was to the driver's left hand side thereof as testified to by one or more of said witnesses, struck said Linnie Olen Grissom, killing him.
The State's testimony also tended to show that the defendant did not, immediately after striking the deceased, stop his automobile at the scene of the accident, and did not give his name, address and the registration license of said automobile, and did not render to the injured person reasonable assistance.
The third count of the indictment charged that the said Ed Willis, defendant, did not immediately stop said automobile at the scene of the accident, and the fourth count of said indictment charges that the said defendant failed to stop said automobile at the scene of the accident and give his name, address, and registration license of said automobile, and failed to render to the injured person reasonable assistance.
The State offered the testimony of a city police officer, who arrested the defendant, tending to show that at the time of the arrest, an hour or more after the accident, said police officer smelled intoxicating liquor upon the breath of the defendant, and that the defendant was then under the influence of intoxicating liquor.
The testimony for the defendant tended to show that while the defendant was driving his said automobile along said highway, at said time and place, and at a speed of from 25 to 30 miles per hour, Linnie Olen Grissom, the deceased, ran suddenly from behind the green water truck parked on the side of said highway, coming immediately in front of defendant's said automobile, and was thereby struck and killed, and that while defendant did not stop at the scene of the accident, he slowed his car down to about 5 miles an hour when he was told to "go on," to "get away" by one or more of the other occupants of said car, who were riding with him, and that he proceeded to the top of the hill, where he stopped.
The evidence for the defendant proved without dispute that he was a man of good character and that he was neither drunk, nor under the influence of intoxicating liquor at the time of the tragedy.
Upon the trial of the case in the court below the jury returned a verdict into court finding the defendant guilty of manslaughter in the first degree and fixing his punishment at imprisonment in the State penitentiary for six years. In accordance with the verdict of the jury the judgment of the trial court was pronounced against the defendant adjudging him guilty of manslaughter in the first degree, upon which he was sentenced by said court to imprisonment in the penitentiary of Alabama for a period of six years as punishment for said offense.
Upon the trial of the case in the court below the defendant's plea to each count of the indictment was not guilty, which, of course, placed upon the State the burden of proving beyond a reasonable doubt that the defendant was guilty of one, some, or all of the offenses charged in the indictment.
Before the jury retired the defendant requested the trial court, in writing, to give to the jury the following written charge:
Count 1 of the indictment hereinabove set out charged that the defendant committed manslaughter in the first degree.
Every criminal case must be tried according to the rules of law as they exist, and these rules should be uniformly applied and not misconstrued or misapplied to meet a certain state of facts. Lay v. State, 26 Ala.App. 458, 162 So. 319. The controlling question in all criminal prosecutions is the guilt or innocence of the person accused of the crime for the commission of which he is being prosecuted. However guilty the defendant may appear to be, he is nevertheless entitled to a fair and impartial trial, and before a judgment of conviction can be permitted to stand, upon appeal, it must affirmatively appear that the trial below proceeded throughout without prejudicial and substantial error. Taylor v. State, 22 Ala.App. 428, 116 So. 415.
Under Section 4460 of the Code 1923, manslaughter by voluntarily depriving a human being of life is manslaughter in the first degree.
If the evidence in a criminal prosecution tends to show that a homicide resulted from an intentional act, or from a negligent act so wantonly and recklessly committed as to show a disregard of human life at the time and place and under the circumstances of the homicide, this, of course, would be evidence tending to show the commission of voluntary manslaughter, or manslaughter in the first degree.
In the case at bar there is no evidence tending to show that the defendant even knew the deceased prior to the accident. There is no evidence that shows or tends to show that the defendant intentionally ran his automobile, or drove same, against or over the deceased. The State, upon this appeal, does not insist that the defendant intentionally drove his automobile against or over the...
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