Anderson v. State

MERRITT, J.

The oral charge of the court in reference to manslaughter, when taken and considered as a whole, does not appear to be subject to criticism. Bailum v. State, 17 Ala. App. 679 , 88 South. 200 .

Appellant complains at a part of the court’s oral charge, dealing with the speed < law, with reference to the operation of automobiles along the public highway; hut an examination of the record discloses that no exception was reserved to this part of the oral charge.

The defendant, having been convicted of manslaughter in the second degree, cannot complain at the refusal of the court in refusing charges on murder in the second *430 degree and manslaughter in the first degree.

Refused charges 11 and 12, being the affirmative charges, were properly refused, as the evidence was in conflict, and there is evidence in the record to justify a conviction.

Refused charge 17 is elliptical.

Refused charges 4 and 6 do not state correct principles of law. To be guilty of second degree manslaughter, it was not necessary that the automobile be intentionally run over deceased, as stated in said charges. If the act had been intentionally committed, the offense” would of necessity be a higher one than second degree manslaughter.

Refused charges 5, 18, 14, and 16 are had, in that they would justify an acquittal of defendant if the injury was accidental, while the law justifies conviction if the defendant was engaged in an unlawful act, or the doing of a lawful act in an unlawful manner.

The record is free from error, except the sentence. To sentence to 314 days’ hard labor to pay the costs is erroneous, as 10 months, of 30 days each, or 300 days, is the maximum period for which one can be sentenced. to pay the costs. Code 1907, §§ 8, 7635.

The judgment of conviction is 'affirmed, but the cause is remanded for proper sentence.