Hammell v. State

SAMFORD, J.

The indictment charged murder. The verdict of the jury acquitted the defendant of the murder charge and found him- guilty of manslaughter in the first degree. This finding eliminates from this appeal a consideration of those questions affecting the charge of murder.

The defendant, while driving an automobile along the public road, ran said automobile against Arthur Blanton, a pedestrian on the road, inflicting injuries from which he died. The record contains the testimony of many witnesses, but practically all of the testimony is cumulative, tending to establish a few simple facts from which the jury should make up their verdict.

The testimony for the state, after proof of the homicide, tended, to show that the defendant was driving his automobile along the highway, and at a place where people were congregated, in an unlawful and reckless manner, and in violation of section 6267 of the Code of 1923, which reads as follows:

“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 highways, or so as to endanger property, or the life or limb of any person. A rate of speed in excess of thirty miles an 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.”

The evidence for the defendant was to the contrary.

By this section of the Code the Legislature has placed in the hands of the juries of the state the duty of ascertaining from the facts in each particular case, whether an automobile is being driven recklessly. The prohibition fixed by the statute is against reckless driving, determinable not alone by speed, but by the surrounding circumstances, manner of driving, mental and physical condition of the driver, etc. This fact, under the evidence, was a question for the jury and was submitted to them under instructions from the court. The penalty for reckless driving is fixed by section 3328 of the Code of 1923.

The first question after proof of the corpus delicti is; Was the defendant at the time of the killing guilty of reckless driving? If so, and as a proximate result deceased received injuries from which he died, the crime was manslaughter. Crisp v. State (Ala. Sup.) 109 So. 287 .

If the act causing the death of young Blanton was unlawful either at common law *635 or by statute, and the result was unintentional, the defendant would only he guilty of manslaughter in the second degree. Crisp v. State, supra; Mitchell v. State, 60 Ala. 33 ; Sawyer v. State, 20 Ala. App. 504 , 103 So. 309 ; McBride v. State, 20 Ala. App. 434 , 102 So. 728 .

To constitute manslaughter in the first degree the automobile must have been intentionally 'driven against deceased, or so recklessly and carelessly driven as to have been manifestly dangerous to human life. 29 Corpus Juris, 1128 (116).

If the blow struck with the automobile being driven by defendant was intentional, or the automobile was being so driven as to evidence wantonness or a reckless disregard of human life, the killing would be -manslaughter in the first' degree, or, if the jury should infer malice, murder. Fowler v. State, 161 Ala. 1 , 49 So. 788 ; Lewis v. State, 96 Ala. 6 , 11 So. 259 , 38 Am. St. Rep. 75 .

Was the defendant violating the law in driving the automobile in violation of the statute? This was a question for' the jury under the evidence. Was he driving the automobile in violation of law ‘and that so recklessly and wantonly as to endanger human life, taking into consideration all of the surrounding circumstances? This too, under the evidence, was a question for the jury.

Refused charges 27, 28, and 29 ignore that part of the evidence tending to prove reckless driving of the automobile and gives undue prominence to defendant’s evidence that he was blinded by the lights from an approaching car. Cleveland v. State, 20 Ala. App. 426 , 103 So. 707 .

Refused charge 30 is invasive of the province of the jnry.

Refused charge 31 is also invasive of the province of the jury. The rate of speed at which an automobile is being run does not always determine whether it is being driven in violation of law or in a reckless manner in disregard of human life. The true rule was given at the request of defendant in given charge 12.

When taken and considered as a whole, “the oral charge of the court is without error.

We find no error in the record, and the judgment is affirmed.

Affirmed.