20 So. 2d 885 | Ala. Ct. App. | 1945
Undisputedly, at about midnight on a Saturday in November 1943, Mr. Howard Kuntz and Mr. Harris parked the car in which they were traveling on the right-hand side of the highway between Chickasaw and Satsuma in Mobile County, Alabama.
While the said two men were standing on the ground, occupied in making some repairs to their car, another automobile, traveling the same highway, struck and killed both men. The driver of the moving car, without stopping, turned around a short distance up the road, and continued his journey in the direction from whence he came.
Mr. Grantham, a State's witness, was standing near the scene and observed the occurrence, but did not know or recognize the driver of the car which struck the decedents.
Appellant denied that he was the driver or occupant of the car which left the scene. The jury concluded that he was and returned a verdict of guilt — manslaughter in the second degree as charged.
With the exception of Mr. Grantham's testimonial explanation of what he observed at the time of the unfortunate event, the evidence for the State was in the main circumstantial. It would serve no good purpose to analyze the tendencies of the evidence. Suffice it to say that a jury question was presented. *611
This seems to be the view taken by appellant, as we do not find in brief any insistence to the contrary. The affirmative charge for appellant was correctly refused. Brown v. State,
After a State's witness had related the contents of several statements he claimed appellant made, the solicitor was permitted by the court, over appellant's objections, to refresh the recollection of the witness as to the contents of an unrelated statement made on the same occasion. The solicitor made known to the witness and the court that it was for the purpose of refreshing the recollection of the witness and for that purpose solely. It is not unusual for a person to fail to remember at a later time everything that was said by one with whom he was conversing. The primary court was exercising his discretionary privilege and not abusing it in allowing the question to be answered. Moulton v. State,
The solicitor was interrogating a witness as to whether or not appellant was intoxicated. A question: "Did he walk straight?" The answer: "Well, none too straight, no sir." The lower court overruled appellant's motion to exclude the above answer. The position taken was that the answer was not responsive to the question. When we take into account the inquiry to which the question was directed, it is apparent that the witness was answering in the negative, and it was therefore a responsive reply. Pittman v. State,
In answer to the question, "Was Mr. Bringhurst under the influence of intoxicating liquors at the time he left there?" a witness said, "Well, he drank a bottle of beer and that is all I know." If it could be said that there was not sufficient proof of the qualification of the witness, touching her knowledge of the subject of the query, no harm inured to appellant on this ground. The answer was a statement of facts and not opinion. Supreme Court Rule 45, Code 1940, Tit. 7 Appendix.
Before resting its case and without objections, the State introduced in evidence a written statement made by the defendant to the officers. This instrument contained a detailed narration of the places appellant claimed he visited during the Saturday night the two men were killed on the highway. The written document disclosed that he did not spend the night at home. On cross-examination, defendant's wife testified that her husband left home Saturday afternoon and did not return until the next day. Against objections of appellant, the lady was required by the court to answer this question: "When he left he said he was coming back home, didn't he?" We find no difficulty in reaching the conclusion that the wide latitude allowed on cross-examination permitted this inquiry. Thomas v. State,
Appellant's counsel moved to exclude the answer of a State's witness that appellant "was drinking", on the ground: "he never stated he was under the influence of anything."
The witness had, according to his testimony, been observing, for four years or more, people who were drinking intoxicating liquors. It is well recognized that in the use of the word "drinking", as applied to the instant inquiry, it is intended to convey the information of a lesser degree of intoxication than "drunk". Jones on Evidence, Sec. 360; May v. State,
Charge numbered one was refused without error. This charge was held to be proper and its refusal error in the earlier cases of our appellate courts: Walker v. State,
Charge No. 3 was covered by the court's oral charge.
Charge No. 4 was condemned as bad in Gilbreath v. State,
Charge No. 6 was properly refused in the case at bar. Jones v. State,
Refused Charge No. 7 has been declared by our courts to be a correct statement of the law: Cory v. State,
Refused Charge No. 8 and charges similar thereto have had frequent consideration by this court and the Supreme Court. As we interpret the authorities, we are of the opinion that the refusal of this charge was proper. The identical charge was approved in Mitchell v. State,
In the case of Jones v. State,
On review, Jones v. State,
It appears to us clearly that the above criticism of the charge in the Jones case, supra, reaches and explains the vice of the charge in the instant case.
This court has consistently followed the holding in the Jones case, supra, in subsequent opinions: Powell v. State,
There is no error apparent from the refusal of Charge No. 10. It is confusing, neither is it free from misleading tendencies.
Refused charge lettered (C) is abstract, if not otherwise faulty.
It is ordered, therefore, that the judgment of conviction be and the same is affirmed.
Affirmed. *613