The defendant was indicted and convicted of manslaughter in the second degree. Without approving all that was written by the Court of Appeals in either of the two concurring opinions in this case, we concur with that court in holding the trial court erred in its oral charge when it stated to the jury:
"Was he running at a greater rate of speed than the law permitted him to run? If he was, he would be guilty as charged in the indictment."
It invades the province of the jury. This charge ignored all questions as to the cause of the killing. The jury must believe beyond a reasonable doubt from the evidence that the unlawful act of the defendant was the cause of the death of Elmer Paul Jacobs before they could convict the defendant. The unlawful act done by him appears to have been the running of a car at a greater rate of speed than is permitted by an ordinance in the city of Birmingham. A violation of such an ordinance is negligence per se. A violation of it is made a criminal offense; but, before a person would be guilty of manslaughter in the second degree for its violation, it must appear from the evidence beyond a reasonable doubt that the violation of the ordinance by the defendant occasioned, caused the injury from which Jacobs died. The violation of the ordinance by the defendant may have had no causal connection with Jacobs' death. The act causing the death of decedent must be unlawful and the result unintentional to constitute the offense of manslaughter in the second degree. This court, in Mitchell v. State, 60 Ala. 33, clearly and correctly defined manslaughter in the second degree as follows:
"Manslaughter in the second degree is when the homicide results from the commission of a misdemeanor, or civil tort, but which result was not intended or contemplated."
The homicide must result from or be caused by the unlawful act done by the defendant; but the result of this unlawful act must be unintentional, not contemplated by him, in order to constitute manslaughter in the second degree.
In addition to the authorities cited by the Court of Appeals on this subject, see, also, City Ice, etc., Co. v. Lecari,210 Ala. 629, 98 So. 901; Johnson v. State, 94 Ala. 35, 10 So. 667; Harrington v. State, 83 Ala. 16, 3 So. 425.
This error is emphasized rather than corrected by the entire oral charge when it is considered as a whole, as it should be. Ex parte Cowart, 201 Ala. 525, headnote 4, 78 So. 879. The court in another place in its oral charge to the jury stated:
"Was this defendant violating the speed law at the time of this accident, or, if he did not exceed the speed limit, was he grossly negligent in running at a speed so high that he could not control his automobile or his motor truck, and by doing so he ran into or ran over this deceased and killed him? If so, he would be guilty."
This charge is in the alternative. By this the court charged the jury:
"Was this defendant violating the speed law at the time of this accident? * * * If so, he would be guilty."
In this the court made the same error. Then the court again committed and emphasized the same error in its oral charge, when it stated this in the alternative to the jury:
"But, on the other hand, if he was grossly negligent in driving too fast, considering all the circumstances at the time of the killing, or if it was violating the law at the time he did it, why then he would be guilty, and it would be your duty to convict him."
The statute does not permit an erroneous statement of the law like this, in this general oral charge of the court to the jury, to be cured by written charges requested by a party and given by the court. The oral charge would be in conflict with the given written charge; and the jury would be in doubt as to which should guide them in reaching a verdict. The statute states:
"The refusal of a charge, though a correct statement of the law, shall not be cause for a reversal on appeal, if it appears that the same rule of law was substantially and fairly given to the jury in the court's oral charge or in charges given at the request of parties." Section 9509, Code of 1923.
The application for the writ of certiorari should be denied.
GARDNER and THOMAS, JJ., concur. *Page 4