Wilson v. State

• Court: Alabama Court of Appeals
• Writing for the Court: CARR, Judge.
• Citation: Wilson v. State, 32 Ala.App. 591, 28 So.2d 646 (Ala. App. 1946)
• Decision Date: 17 December 1946
• Docket Number: 5 Div. 227.
• Parties: WILSON v. STATE.

28 So.2d 646

32 Ala.App. 591

WILSON v. STATE.

5 Div. 227.

Alabama Court of Appeals

December 17, 1946

Rehearing Denied Jan. 7, 1947.

D T. Ware, of Roanoke, for appellant.

Wm N. McQueen, Atty. Gen., and Geo. C. Wallace, Asst. Atty. Gen., for the State.

The following charges were refused to defendant:

'4. I charge you, Gentlemen of the Jury, that the territory contiguous to the place on the highway where the evidence shows the deceased to have been struck by defendant's automobile, is not a 'residence district' as defined by the laws of Alabama.

'5. The Court charges the jury that if you believe from all the evidence in this case that the deceased child ran suddenly into the road or highway in front of defendant's car, and that the defendant did not intentionally run his car against the said child or was at the time and place so wantonly or recklessly operating his said automobile, as to evidence a reckless disregard of human life, you will find the defendant not guilty.

'9. The Court charges the jury that unless you believe beyond a reasonable doubt from all the evidence in this case that the defendant intended to take the life of the deceased child or that with actual knowledge of the peril of the child he operated his automobile at the time and place in an unlawful and wanton manner and failed to take available preventive action knowing that such failure would probably result in injury or death to said child, it would be your duty to acquit the defendant.

'10. The Court charges the jury that if you believe from all the evidence in this case that the killing of the deceased Zeiger child was an accident, you will acquit the defendant.¹¹

CARR Judge.

This is an appeal from a judgment of conviction for manslaughter in the second degree. The indictment, upon which the prosecution was based, charged murder in the second degree.

In a well prepared brief counsel for appellant lists five propositions, upon each of which insistence is anchored for error. Our study of the record convinces us that, when we have treated each of these, we will have discussed all reviewable matters of meritorious inquiry.

'Proposition No. 5. Trial Court erred in refusing appellant's Charge No. 1 requested in writing.' No. 1 is the general affirmative charge.

The victim of the unfortunate incident that gave rise to this cause was a three year old child. Without dispute in the evidence, the defendant was the driver of the automobile which struck or collided with the little boy, as the latter was in the act of passing on foot across the highway.

The collision occurred in the daytime on the paved surface of the Montgomery-Atlanta Highway at Langdale, Alabama. Near the opposite side of the highway from the place the child started as he attempted to cross, there is a street which intersects the highway at right angles. The little boy lived down this street a short distance. The testimony is not sufficiently clear to enable us to draw an accurate mental picture of the location of the various buildings described in the evidence. However, a careful study of the record brings us to the unmistakable conclusion that along the highway and the street entering it, as above noted, there are several dwelling houses, an ice plant, and a beauty shop located in fairly close proximity to the locale of the collision.

The evidence bears the indisputable finding that the little child came suddenly and unexpectedly into the path of the moving automobile.

Under the circumstances disclosed by the record, the matter of the apeed of the appellant's car is a very material inquiry. The mother of the deceased testified that she observed 'for a pretty good piece' the automobile as it was approaching the place of impact and in her judgment it was traveling at a rate of about 75 miles per hour.

Four occupants of the automobile, including the appellant, gave testimony on the trial in the court below. One of these deposed that the rate of speed of the car at the time in question was between 20 and 30 miles per hour. Another said it was proceeding at a rate of 30 miles. The defendant and his brother fixed the speed at 25 or 30 miles. Whether or not the highest figure was an overestimate or the lowest was an under-appraisal it was, of course, for the jury to determine.

Title 36, Sec. 3, Code 1940 specifies: 'Any person who drives any vehicle upon a highway carelessly and heedlessly in wilful or wanton disregard of the rights or safety of others, or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property, shall be guilty of reckless driving * * *.'

Sec. 5 of the same title fixes the speed in a residential district at 25 miles per hour.

In Jones v. State, 21 Ala.App. 234, 109 So. 189, 191, this court approved the trial judge's definition of manslaughter in the second degree, which was given in the following language: 'Manslaughter in the second degree is defined as the unlawful killing of another human being, without malice and without the 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.'

Judge Samford writing for this court in Estes v. State, 18 Ala.App. 606, 93 So. 217, 219, observed: 'Manslaughter in the second degree may be committed by the doing of an unlawful act, or the doing of a lawful act in an unlawful manner, although at the time the defendant did not actually know that the act would result in a homicide, and this notwithstanding, after the act was done, or while in progress, the defendant used ordinary care to prevent the taking of human life; not is the intention to take life necessary in a prosecution for this crime.' See, also, Crisp v. State, 215 Ala. 2, 3, 109 So. 287, and in connection therewith Crisp v. State, 21 Ala.App. 449, 109 So. 282; Sawyer v. State, 20 Ala.App. 504, 103 So. 309; Hammell v. State, 21 Ala.App. 633, 111 So. 191.

Appellant in brief of counsel cites Barnett v. State, 27 Ala.App. 277, 171 So. 293. It is true that this court held in the Barnett case, supra, that the evidence did not warrant a finding by the jury of guilt of manslaughter in the first degree, but further observed that there were facts from which an inference could be drawn to sustain a conviction for manslaughter in the second degree.

We are convinced that in the instant case...