Barnett v. State

Appellant was convicted of the offense of manslaughter in the first degree, and his punishment fixed at imprisonment in the penitentiary for the term of five years. It was alleged in the indictment under which he was tried that he "killed Elizabeth Alverson by driving an automobile over, upon or against her."

It appears without dispute that Elizabeth Alverson, a young woman eighteen years of age, was struck by an automobile being propelled at a rate of speed sufficient to raise her body in the air about as high as a "man's head," and to knock it some 85 or 90 feet in the direction in which the automobile was going.

At the time Miss Alverson was struck, as above, the uncontroverted testimony is that she was standing still, in the center of First avenue in Birmingham, Ala., at a point where same is 68 feet wide; and that the point where she was struck was in the direct line from the north to the south side of said avenue (which runs east and west) a one would leave the curbing of said avenue to cross it, while traveling southward — as the testimony shows she was doing — on Sixty-First street, in said city. In other words, the testimony was ample to warrant the finding that the one driving the automobile which struck Miss Alverson — and killed her — was guilty of the offense of manslaughter in the first degree.

The testimony connecting this appellant with the crime was entirely circumstantial. In this situation, it is of course true that, "no matter how strong the circumstances, if they can be reconciled with the theory that some other person may have done the act, then the defendant is not shown to be guilty, by that full measure of proof the law requires." Cannon v. State,17 Ala. App. 82, 81 So. 860. But, as pointed out in the opinion in this Cannon Case, just cited, "this is a rule of law for the guidance of the jury in its conclusions, to be drawn from all the evidence; as to whether the evidence can be so reconciledis a question for the jury, and not for the court." (Italics ours.) Assuming, of course, that there was some substantial evidence tending to fasten the crime charged upon defendant (appellant).

We do not deem it essential to outline nor detail the evidence which tended to show the guilt of appellant. Suffice to say that, after a careful examination of the contents of the bill of exceptions, we are persuaded, and hold, that the learned trial judge was correct in his view that the same made a case for the jury. There was hence no error in refusing to give at appellant's request the general affirmative charge to find in his favor.

What we have just been saying might suffice to show that we, likewise, do not think it was error to overrule appellant's motion to set aside the verdict of the jury — as for the insufficiency of the evidence to support same. But we might add that, while the bill of exceptions purports to show that it contains all the evidence offered upon the trial, yet it affirmatively appears that it does not; hence we would, in no event, be warranted in overturning the action of the trial court in denying appellant's (defendant's) motion, on the ground named, to set aside the verdict and grant him a new trial.

We have endeavored to perform our full duty under the terms of Code 1923, § 3258. But we find very little, further, that needs to be said.

The court gave at the request of the state — a dangerous practice — some seven written charges. But each of said charges asserts a correct, applicable, principle of law; and no error, of course, appears in this regard.

In addition to covering fully, lucidly, accurately, and correctly every principle of the applicable law in his splendidly worded oral charge, the trial judge gave at defendant's (appellant's) request some thirteen copiously worded written charges. Thus we find the written chargesrefused to defendant (appellant), in every instance (save, possibly, the one we shall later mention), if not patently erroneous, to be covered in substance by some written charge given at defendant's (appellant's) request, or by the trial court's oral charge. So no error is found in this regard. Code 1923, § 9509.

As for appellant's written, requested, and refused, charge No. 39 — which may, possibly, not be covered by what we have already said — it is only meet that we say that it is now held not to be error to refuse such a charge. Montgomery v. State,169 Ala. 12, 53 So. 991; Brooks v. State, 15 Ala. App. 525,74 So. 85.

We have closely examined every ruling giving rise to an exception reserved on the taking of testimony. It seems to us not necessary to discuss same seriatim. Clearly, we believe, none of same were infected with error prejudicial to defendant (appellant).

Since the above was written, appellant's distinguished counsel has filed an elaborate brief, which we have carefully examined. But we find nothing therein that seems to call for more extended statement than we have hereinabove made.

There appears, nowhere, to have been committed error upon the proceedings which calls for a reversal of the judgment appealed from.

And the same is, accordingly, here affirmed.

All that appears hereinabove was written by me as and for the opinion of this court, before the expiration of the 1935-1936 term of our court. It was rejected by my brethren; the case held over until this term of court; and an opinion written by SAMFORD, J., is now promulgated.

It is needless to argue; in fact, appellant's distinguished counsel argued but cursorily, the point upon which the judgment is reversed. He, the learned trial judge, and I, all seem to have been in error — if my associates are correct — in thinking the disposition of the case depended upon other and, as we apparently saw it, closer questions.

If this decision stands, and, being based upon a finding offact (which finding I think is incorrect), it would: seemdestined to stand (Loveman, Joseph Loeb v. Himrod, 226 Ala. 342,147 So. 163), it occurs to me that our Supreme Court erred in its decision in the case of Hyde v. State, 230 Ala. 243,160 So. 237.

I therefore dissent.