Russell v. State

CATES, Judge.

A resume of the facts appears in the within dissenting opinion of Judge JOHNSON.

Out of the blue, the solicitor, in Nix v. State, 32 Ala.App. 136, 22 So.2d 449, stated in closing argument. “These Negroes were running a honky tonk out there,” and thereby worked reversal. Judge Carr concluded this characterization was made as of fact. But it was without support in the evidence. That fault, coupled with the prejudicial import of “honky tonk,” tipped the balance.

Combined with the court’s refusal to exclude a volunteered innuendo by a witness that the defendant sold whiskey, the solicitor’s arguing that she “was hanging around Posey Horton’s honky-tonk” brought reversal here, per Harwood, P. J., Horton v. State, 41 Ala.App. 16, 122 So.2d 920. Mr. Justice Simpson denied the State’s petition for certiorari, 271 Ala. 699, 122 So.2d 923.

The first witness to use “honky tonk” in the case of instant concern was describing a place beside the road along which he drove. The defendant was not shown by him to be there.

Another prosecution witness’s use of the term came into evidence without objection. Without objection the solicitor thrice asked the defendant if he (or his car) had been at the “honky tonk” before the collision.

There was evidence from which, if credited to the degree required in a criminal prosecution, the jury could infer guilt of voluntary manslaughter, e. g., (1) driving a motor vehicle at night on an unlighted road without the headlights working, (2) at a considerable speed, (3) in the lane reserved by law for oncoming cars, and (4) having the headlights of an oncoming car shining where a reasonable person could see their light.

In such circumstances, even if the jury believed a tire on the defendant’s car blew out, they could as readily treat his conduct after the blowout as an aggravation of other recklessness as they could look on the blowout as a mitigating factor. Reynolds v. State, 24 Ala.App. 249, 134 So. 815; Rainey v. State, 245 Ala. 458, 17 So.2d 687.

The judgment is due to be

Affirmed.

PRICE, P. J., concurs in the foregoing opinion.