Williams v. State , 17 Ala. App. 285 ( 1919 )

The only exceptions reserved are to the rulings of the court on the admissibility of evidence, and no brief has come to the hands of the court.

It has many times been held by this court that a witness may be asked leading questions, by the party offering him, as to statements made, different from his testimony then being given, not for the purpose of impeachment, but in order to refresh the recollection of the witness, and the court did not err in following this rule during the examination of the state's witness Aldrich.

The court committed error in permitting the witness Aldrich to testify, over the objection of defendant, that after the killing of the child defendant made a statement about cutting the lights off on his car and referred to it as a "smart trick" and "bragged about it." The answer was a conclusion of the witness as to the meaning of a statement made by the defendant. The statement itself was the best evidence of what the defendant said, from which the jury might draw the conclusions. But this error was immediately cured by the solicitor, who by a proper question called for and the witness gave in response thereto the statement claimed to have been made.

It was also competent to prove that immediately after striking the child with his car defendant speeded up the car, as tending to prove flight.

It was competent for the state to prove that shortly after he struck the child and before any arrest had been made, the defendant told his brother that the "cops were after him" (defendant), as tending to show a consciousness of guilt.

It was also competent for the state to prove that within six or seven city blocks, while the defendant was driving towards the place where he killed the child by recklessly driving his car over it, defendant was cautioned by inmates of the car against fast driving, as tending to show a reckless disregard for human life.

It was also competent for the state to prove that just before and at the time the defendant killed the child by driving his automobile over it defendant was driving his car on a frequented thoroughfare in the city of Birmingham at a rapid speed, and that at the time the woman sitting on the seat with defendant "had her arms around his neck," as tending to show recklessness.

It was also competent for the state to prove statements made by defendant out of court, relating and material to the crime charged, contrary to the statements he was then making, for the purpose of impeaching his testimony, and denials by the defendant that he was present at the time the crime was committed, as tending to prove guilt.

The driving of a six-cylinder, seven-passenger automobile along a greatly frequented thoroughfare at night, and at a rate of speed from 45 to 50 miles per hour, with a woman's arms around the neck of the driver, is the greatest kind of negligence, evidencing a wanton disregard of human life that will support a verdict of manslaughter.

There is no error in the record, and the judgment is affirmed.

Affirmed.