Pippin v. State , 19 Ala. App. 384 ( 1923 )

The indictment contained three counts. The case was submitted to the jury on the third count, which charged that the defendant unlawfully and with malice aforethought killed John Johnson by driving an automobile against a wagon on which the said Johnson was riding, and knocking him therefrom. Demurrers were interposed to the third count on the grounds that it did not allege the means or instrument used to effect the death of the deceased, and that it did not show whether the deceased was killed by the driving of an automobile against the wagon or by being knocked from the wagon.

The indictment charges that the automobile driven against the wagon knocked the deceased therefrom. The instrument of death was the automobile in the control of, and operated by, the defendant. The indictment fully informed the defendant that he was charged with driving an automobile against a wagon in which deceased was riding and in his manner knocking the deceased therefrom and killing him. The indictment was sufficient. The court properly overruled the demurrer.

The defendant was convicted of manslaughter in the second degree.

The evidence for the state tended to show that the defendant drove his automobile along the public road at a high rate of speed — about 40 miles an hour — at the time and place of the accident; that the deceased and two boys were riding in a wagon along the road going in the same direction the defendant was driving his car; that defendant approaching from the rear drove his automobile against the rear wheel of the wagon, in this manner knocking the deceased therefrom and killing him; that the wagon was on the extreme right of the road and there was sufficient room for two cars to pass abreast in the road on the left of the wagon. There was some evidence that some distance up the road just a short time before the accident defendant had swerved his car to the left when meeting a car approaching him and had called attention of those with him to how he was going to make that car take the ditch, and also that just before the accident two boys were riding bicycles along the road and he had run both of them out of the road and laughed as he did so.

The defendant contended that the road was very dusty and he did not see the wagon until about the time he struck it; that he was driving at the rate of 20 or 25 miles an hour, and as soon as he saw the wagon he turned quickly to the left, and his fender struck the wheel of the wagon.

It was competent to show that defendant, while driving his car along the road toward the place where he killed the deceased, upon meeting another car, swerved his car to the left, and said. "Watch me, and see how I will make them take the ditch," as tending to show his reckless disposition and manner of driving shortly before the time of the accident. Williams v. State, 17 Ala. App. 285, 84 So. 424.

It is also competent to show that continuing his journey along the road just before defendant reached the place of the killing he was driving his car at the rate of 40 miles an hour and swerved in the direction of two boys riding bicycles and laughed as he made them leave the road, as tending to show reckless driving. Williams v. State, supra.

Section 21, Act of Legislature (Acts 1911, p. 634) reads:

"No person shall operate a motor vehicle upon the public highways of this state recklessly, or at a rate of speed greater than is reasonable and proper, having regard to the width, traffic and use of the highway, or so as to endanger property, or the life of limb of any person; provided that a rate of speed in excess of thirty miles per hour for a distance of a quarter of a mile shall be presumed evidence of traveling at a rate of speed which is not careful and prudent."

It was the duty of the defendant upon overtaking the wagon to pass on the left side. Section 20, Acts 1911, p. 634. The above act declares it a misdemeanor to operate a motorcar in violation of the provisions of the act.

In the instant case it was clearly a question for the jury under the evidence to determine whether the operation of the car at the rate of 40 miles an hour at the time of the accident (if they believed from the evidence, beyond a reasonable doubt, that it was so operated) was reckless, or was such rate as was greater than was reasonable and proper, or such rate as would endanger the life or limb of a person.

If the jury determined from the evidence that the defendant was operating his car at the time of the accident at such rate of speed as would endanger life or limb of a person, then the defendant was guilty of a misdemeanor.

The killing of a human being without malice, the slayer being at the time in the commission of a misdemeanor, and not having the intent to kill or to inflict the injury causing death, is manslaughter in the second degree. 1 Mayf. Dig. p. 639, pars. 7 and 8.

The killing of a human being without malice, and without the intent to kill or to inflict the injury causing death, committed in the negligent performance of an act lawful in itself, is manslaughter in the second degree. 1 Mayf. Dig. p. 639, pars. 7 and 8.

The defendant cannot complain of the refusal of charge 1 (the affirmative charge as to murder) and charge (2) (the affirmative charge as to manslaughter in the first degree), as he was convicted of manslaughter in the second degree and thereby acquitted of murder and manslaughter in the first degree.

Charges 3, 4 and 5 were properly refused. It was not necessary that defendant should have willfully or intentionally driven his car against the wagon, nor was it necessary that his conduct should have been so grossly negligent, as to imply a criminal intent, in order to constitute manslaughter in the second degree. 1 Mayf. Dig. p. 639, pars. 7 and 8.

Charge 6 was not predicted on the evidence and was properly refused. Edwards v. State, 205 Ala. 160, 87 So. 17.

Charge 7 was properly refused. It is misleading, and it was not necessary that the defendant should have been guilty of such gross negligence as to imply criminal intent in order to convict of manslaughter in the second degree.

Charge 8 is misleading. Driving at a high rate of speed may be negligence in some circumstances.

Charges 9, 10, 11, 12 are faulty. It is not necessary that the driving over or against deceased should be intentional, or so grossly negligent as to imply criminal intent, to constitute manslaughter in second degree. And the jury are not authorized to acquit if they have a reasonable doubt that the homicide was accidental. It may have been unintentional and accidental, but if done in the commission of an unlawful act, or in the negligent performance of an act lawful in itself, the defendant may be convicted of manslaughter in the second degree. 1 Mayf. Dig. p. 639, pars. 7 and 8.

Charge C (the affirmative charge for the defendant) was properly refused. There was a conflict in the evidence, and there was ample evidence to justify a conviction of manslaughter in the second degree.

The defendant cannot complain of the refusal of charges D and E, the affirmative charge as to murder, and F, the affirmative charge as to manslaughter in the first degree, as the defendant was convicted of manslaughter in the second degree and thereby acquitted of murder and manslaughter in the first degree.

The verdict of the jury as shown by the record is as follows:

"We the jury find the defendant guilty of manslaughter in the second degree and fix his punishment at one year hard labor for the county and assess a fine of $150 against him."

It is not essential that the verdict of the jury be signed by any one as foreman. The jury may announce it to the court ore tenus or upon paper, and the recital contained in the judgment is prima facie correct. The verdict was sufficient. State v. Underwood, 2 Ala. 744.

The motion for a new trial was properly overruled.

We find no error in the record, and the judgement of the circuit court is affirmed.

Affirmed.